as a part of the declaration of trust, except that when a declaration of trust is made in writing, all previous declarations by the same trustor are merged therein.

sec. 2254.)

(Civ. Code,

Other matters discussed in the respective briefs of counsel are incidental to the questions here considered.

No prejudicial error appearing in the record, the judg ment is affirmed.

Conrey, P. J., and Curtis, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 7, 1923.

[Crim. No. 1127. First Appellate District, Division One.-May 10,

1923.]

In the Matter of the Application of KATHARYN HAYWARD for a Writ of Habeas Corpus.

[1] INTOXICATING LIQUORS VIOLATION OF MUNICIPAL ORDINANCE DEFECTIVE COMPLAINT-HABEAS CORPUS.-Where the complaint in a prosecution before a justice's court for a violation of a municipal liquor ordinance does not wholly fail to state a cause of action, but at most is merely defective, in that it does not specifically allege that the intoxicating liquor was sold for beverage purposes, such defect might be remedied by demurrer or by motion in arrest of judgment; but where such objection is not raised in the justice's court, or in the superior court on appeal from the judgment of conviction, and such judg ment is affirmed, the defendant is not entitled to her release upon habeas corpus.

PROCEEDING in Habeas Corpus to secure the release of petitioner after conviction of violation of a municipal liquor ordinance. Writ discharged and petitioner remanded.

The facts are stated in the opinion of the court.

Harry G. McKannay and Allen C. Cunha for Petitioner.

62 Cal. App.-12

Ezra W. Decoto, District Attorney, and Frank M. Shay, Assistant District Attorney, for Respondent.

ST. SURE, J.-Petitioner, Katharyn Hayward, was convicted in the justice's court of the city of Berkeley upon a complaint alleging in part and charging as follows:

"That heretofore, to wit, on the 14th day of June, 1921, the City Council of the City of Berkeley, in pursuance of the power and authority in it vested by the Constitution of the State of California, and in it vested by law, duly passed and adopted a certain ordinance, entitled 'Ordinance No. 724-N. S., Prohibiting the Sale, Manufacture, unlawful possession or Transportation of Intoxicating Liquors, and Providing Penalties for Violation Hereof.'

"That said Ordinance No. 724-N. S. now is in full force and effect in the City of Berkeley. That Section 18 of said Ordinance No. 724 N. S. declares any violation of said Ordinance No. 724 N. S. to be a misdemeanor.

"That heretofore, to wit, on the 3d day of October, 1922, in the City of Berkeley, in the County of Alameda, State of California, a certain person, to wit: Katharyn Hayward, did then and there commit the crime of misdemeanor, to-wit, the said Katharyn Hayward did then and there willfully, and in violation of said Ordinance No 724 N. S., and more particularly Section 2 thereof, sell intoxicating liquor within the City of Berkeley, thereby violating the provisions thereof, and thereby becoming liable to the penalty provided therein."

[1] Petitioner pleaded guilty and was sentenced to imprisonment in the county jail of the county of Alameda for a period of six months. Thereafter she took an appeal from the judgment of conviction to the superior court of the county. The superior court affirmed the judgment of the justice's court and she was remanded to the custody of the sheriff. Subsequently she applied to this court for a writ of habeas corpus and was released upon bail pending a hearing of this proceeding.

Petitioner's sole contention is that the complaint upon which she was convicted "utterly and wholly fails to state a public offense known to the law," for the reason that it fails to allege that the intoxicating liquor was sold for beverage purposes. Section 2 of the ordinance particularly

referred to in the complaint, and for violating the provisions of which petitioner was arrested, reads as follows:

"Section 2. No person shall manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor, except as authorized in this ordinance, and all the provisions of this ordinance shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented. Liquor for non-beverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished and possessed, but only by a person holding a valid permit from the United States Internal Revenue Department, and only in accordance with the laws of the United States; provided, nothing in this ordinance shall prevent the purchase and sale of warehouse receipts covering distilled spirits on deposit in government bonded warehouses, and no special tax liability shall attach to the business of purchasing and selling such warehouse receipts."

Counsel for petitioner concede that a writ of habeas corpus may not subserve the office of a demurrer (In re Ruef, 150 Cal. 665 [89 Pac. 605]), but argue that this rule does not apply to courts of inferior and limited jurisdiction, citing Ex parte Kearny, 55 Cal. 212, and Ex parte Greenall, 153 Cal. 767 [96 Pac. 804]. Since the opinion in Ex parte Greenall, supra, was written, in 1908, there has been exhaustive discussion of the rule mentioned. Mr. Justice Hart, in In re Avdalas, 10 Cal. App. 507, 512 [102 Pac. 674, 676], says: "It does not definitely appear from the opinion in the Greenall case, supra, that the court intends to hold that the writ of habeas corpus, as to misdemeanors of which justices' and police courts have jurisdiction, shall serve the purpose of a writ or proceeding for the correction of errors, and therefore, I agree with the court in the case of Ex parte Williams, 121 Cal. 328 [53 Pac. 706], that the writ is not to be made to serve the office of a demurrer."

Petitioner in In re Turck, 37 Cal. App. 601, 604 [174 Pac. 100], relied upon Ex parte Kearny, supra, and Ex parte Greenall, supra. Mr. Justice Conrey, in the opinion of the court, says: ... Ex parte Kearny, 55 Cal. 212. The particular application of the rule in that case was that the court determined that the alleged offense stated in the com

plaint in the police court where the petitioner was convicted did not constitute any crime against the law, and that therefore the petitioner was entitled to be discharged on habeas corpus. In Ex parte Greenall, 153 Cal. 767, 770 [96 Pac. 804, 806], the court said: 'It has been the uniform practice to consider on habeas corpus the question of the sufficiency of the complaint in such inferior courts, and to discharge the prisoner where such complaint failed to show a public offense under the laws of the state.'

"The courts have been careful, however, not to extend the principles above stated so far as to interfere with the use of the right of appeal as the ordinary remedy of a defendant in a criminal case. 'The writ of habeas corpus is not intended to review the regularity of the proceedings in any case, but rather to restore to his liberty the citizen who is imprisoned without color of law.' (In re Kowalsky, 73 Cal. 120, 122 [14 Pac. 399].) 'A writ of habeas corpus cannot be made the vehicle of determining mere errors, where a conviction has been had and the commitment thereon is in due form. If the court below had no jurisdiction of the offense charged, or if it affirmatively appears by the record that the prisoner was tried and sentenced for the commission of an act which, under the law, constitutes no crime, the judgment is void and the prisoner should be discharged.' (Ex parte Miranda, 73 Cal. 365, 371 [14 Pac. 888, 891].) In Ex parte Turner, 75 Cal. 226 [16 Pac. 898], it appeared that in a police court the petitioner had been convicted of a misdemeanor. The judgment did not recite the date of the offense or state the elements of the crime as fully as they were necessarily stated in the complaint. Nevertheless the petitioner was remanded, the court saying: 'The distinction between a void and a voidable judgment is sometimes very nice, and the judgment will fall under the one class or the other accordingly as it is regarded for different purposes. . . . After trial and conviction the commitment is of a higher dignity than an ordinary commitment holding to answer. This is true with courts, both of special or limited jurisdiction and those of general jurisdiction. The judgment of a court of inferior jurisdiction is, to a great extent, as far beyond the reach of collateral attack by the writ of habeas corpus as the judgments of higher courts are. (Church on Habeas Corpus, sec. 240.) ... The

failure of the court to state the elements of the crime in the judgment as fully as they were necessarily stated in the complaint does not render the judgment void. The offense is sufficiently designated in the judgment. To entitle the petitioner to a discharge, we must necessarily assume that the record of conviction fails to show the commission of any offense. To reach this conclusion we should have to resort to a hypercritical, overnice, and technical examination of the commitment, convert the writ of habeas corpus into a writ of error, and defeat the ends of justice.'

In In re Reineger, 184 Cal. 97 [193 Pac. 81], also a habeas corpus proceeding, the supreme court said at page 104 of 184 Cal. [193 Pac. 84]:

"It may be that the complaint is uncertain because it does not state whether the petitioner is a wholesale dealer or a retail dealer as defined in the act. It does not allege whether the sixty cans sold amounted to one full case or not. Habeas corpus lies in such cases only when the magistrate is without jurisdiction to issue the warrant of arrest. Where a complaint in a court of inferior jurisdiction states facts showing that the defendant has committed a public offense, but is subject to attack by demurrer on the ground that it is uncertain as to the particular offense committed, the inferior court has jurisdiction and the defect will not be ground for his release on habeas corpus. (Ex parte McNulty, 77 Cal. 164, 166 [11 Am. St. Rep. 257, 19 Pac. 237].) There is nothing in Ex parte Kearny, 55 Cal. 212, or Ex parte Greenall, 153 Cal. 767 [96 Pac. 804], that is contrary to this rule. The complaints there considered failed to show that the defendant had committed any offense whatever." This opinion was written by Mr. Justice Shaw, and concurred in by the then Chief Justice Angellotti, who wrote the opinion in Ex parte Greenall.

In In re Culver, 187 Cal. 437 [202 Pac. 661], Mr. Justice Lennon, writing the opinion for the court, says: "It is true, as petitioner contends, that it is a settled rule in habeas corpus proceedings that a court may determine whether or not a complaint in a justice's court in a criminal proceeding states facts sufficient to constitute a public offense. (E.c parte Kearny, 55 Cal. 212; Ex parte Greenall, 153 Cal. 767, 770 [96 Pac. 804]; Matter of Ah Sing, 156 Cal. 349 [104 Pac. 448].) However, the rule is also well established that