in determining the sufficiency of such a complaint the greatest liberality of construction must be indulged; if the complaint states facts which constitute a crime, it will not be held insufficient because other facts are stated which are irrelevant or immaterial or because the law violated by the alleged acts is inaccurately described therein. (Ex parte Williams, 121 Cal. 328, 330 [53 Pac. 706].)"

In the Matter of Kaster, 52 Cal. App. 454 [198 Pac. 1029], it was said: "The law is clear that when the complaint wholly fails to state a cause of action the writ of habeas corpus will lie (Ex parte Williams, 121 Cal. 328 [53 Pac. 706]; Ex parte Kearny, 55 Cal. 228; Ex parte Sullivan, 17 Cal. App. 278 [119 Pac. 526]); but . . . the proceeding may not be made to subserve the office of a demurrer; and if the facts alleged squint at a substantive statement of the offense, no matter how defectively or inartificially they may be rendered through intermingling them with immaterial or unnecessary averment, the writ will not lie. (Ex parte Whitaker, 43 Ala. 233; Matter of Prime, 1 Barb. (N. Y.) 340; Ex parte Williams, 121 Cal. 330, 331 [53 Pac. 706].) To the same effect, Ex parte Ruef, 150 Cal. 665 [89 Pac. 605]; In re Avdalas, 10 Cal. App. 507 [102 Pac. 674]." The Matter of Kaster was heard after decision in the district court of appeal by the supreme court (185 Cal. 647 [198 Pac. 1031], which said: "The court [referring to the district court of appeal] filed a written opinion. . . . All points available to petitioner on habeas corpus are considered in that opinion, which, to our minds, correctly states the law in regard thereto. The application for a writ is denied. All the justices concurred."

...

The last expression of the supreme court upon the subject is to be found in In re Von Perhacs, 190 Cal. 364 [212 Pac. 689], decided March 1, 1923, in which the court said: "Habeas corpus may not be resorted to in lieu of a demurrer to a complaint in a misdemeanor case upon. a ground of uncertainty, etc. The defect, if any, in the complaint in the instant case, for failure to specify the particulars of the offense charged, might have been remedied by demurrer, and if not by demurrer, then by motion in arrest of judgment as provided under section 1452, Penal Code."

Extended reference is made to the discussion of this subject by the appellate courts for the purpose of demonstrating that there is a marked trend in the decisions toward a more liberal application of the rule as stated in Ex parte Kearny, supra, and in Ex parte Greenall, supra. Indeed, we feel constrained to say that the rule of those cases has been whittled down by judicial construction until it has become a mere shadow line of authority.

The objection as to the uncertainty of the allegations in the complaint (sec. 952, Pen. Code) is answered by what was said by the supreme court in In re Von Perhacs, above quoted, and also, with more particularity, in In re Reineger, 184 Cal. 97 [193 Pac. 81], In re Avdalas, 10 Cal. App. 507 [102 Pac. 674], and in People v. Bonfanti, 40 Cal. App. 614 [181 Pac. 80].

The justice's court of the city of Berkeley is established under the provisions of section 103 of the Code of Civil Procedure. This section provides that "justices of the peace of cities and justice's courts of cities shall also have jurisdiction of all proceedings for the violation of any ordinance of any city in which courts are established, both civil and criminal, . . . and generally exercise all powers, duties and jurisdiction, civil and criminal, of police judges, judges of police courts, recorder's courts or mayor's courts within such city." The justice's court of the city of Berkeley has jurisdiction of certain public offenses committed in the county of Alameda, including “all misdemeanors punishable by fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or by both such fine and imprisonment." (Pen. Code, sec. 1425.) It is plain that the offense charged against the defendant comes within these provisions.

Counsel for petitioner calls our attention to the fact that Ordinance No. 724 (New Series) of the city of Berkeley is identical with the Volstead Act, and cites the cases of United States v. Dowling, 278 Fed. 630, United States v. Horton, 282 Fed. 731, 732, State v. Catalino, 118 Wash. 611 [204 Pac. 179, 180], State v. Bulloch, 151 La. 593 [92 South. 127], and United States v. Boasberg, 283 Fed. 305, as authority for the proposition that a complaint under such a law fails to state a public offense unless it charges that the intoxicating liquor was sold for "beverage purposes.

An examination of these cases shows that in United States v. Dowling, supra, each defendant filed a demurrer and the demurrer was sustained, the court stating: "If the indictment is bad the remedy is by demurrer or motion to arrest judgment." In United States v. Horton, supra, the indictment upon demurrer, was held fatally defective. In State v. Catalino, supra, the concluding paragraph of the court's opinion is: "The court should have granted the defendant's motion for arrest of judgment and for that reason the judgment is reversed." In State v. Bulloch, supra, the case was decided upon a motion in arrest of judgment. In United States v. Boasberg, supra, the matter was submitted and decided upon demurrers and motions to quash the indictments.

The charging part of the complaint is that "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." The most that can be said in criticism of the allegation quoted is that it may not be sufficiently specific, and that it is the mere statement of a conclusion. But, surely, it attempts to charge an offense; it, at least, as was said in Ex parte Williams, 121 Cal. 328 [53 Pac. 706], "squints" at an offense. It seems to us that it clearly charges that petitioner sold intoxicating liquor within the city of Berkeley in violation of law. Certainly there is nothing ambiguous about the language used. She was not misled in any way by the charge, and pleaded guilty thereto. The commitment shows that after conviction "defendant Katharyn Hayward being present in court, said defendant was informed by the court of the nature of the complaint filed against her, and of her plea, and of her conviction of said offense, and was asked by the court if she had any legal cause to show why judgment should not be pronounced against her; and no sufficient cause being alleged, or appearing to the court," etc. It is presumed that the police who arrested petitioner, and the magistrate before whom she appeared, was convicted and sentenced, performed their duties properly and with due regard to the law and the rights of the petitioner. We have no hesitancy in saying, in conclusion, that, in our opinion,

the complaint does not wholly fail to state a public offense, and that any defects therein might have been remedied by demurrer or by motion in arrest of judgment.

The writ is discharged and the petitioner remanded.

Tyler, P. J., and Richards, J., concurred.

[Civ. No. 4234. Second Appellate District, Division One.-May 10, 1923.]

J. C. BERENDSEN et al., Respondents, v. A. BABDATY, Appellant.

[1] APPEAL-DELAY IN FILING BRIEF-INSUFFICIENT EXCUSE-RELIEF FROM DEFAULT.-The fact that appellant's counsel was under an unusual pressure of work and that his general health was poor cannot be accepted as a sufficient reason for excepting his case from the salutary rule of the supreme court which provides that "within thirty days after the filing of the transcript, the appellant shall file with the clerk his printed points and authorities"; neither is that fact sufficient to entitle appellant to be relieved from his default, under the provisions of section 473 of the Code of Civil Procedure.

[2] ID. EXPIRATION OF TIME - ABSENCE OF KNOWLEDGE

- INSUFFICIENT EXCUSE.-The fact that appellant's counsel did not personally examine his calendar nor have his attention directed by either his stenographer or by his clerk to the fact that his brief either was about to become due or that the time had elapsed within which under the rule he might properly file same is not enough to bring his neglect within the terms of section 473 of the Code of Civil Procedure.

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles. E. A. Luce, Judge. Granted. Motion to be relieved from default in filing opening brief. Denied.

The facts are stated in the opinion of the court.

1. Excusable neglect of attorney in failure to file brief within time required, note, 27 L. R. A. (N. S.) 858.

C. M. Mooslin and Bernard Potter for Appellant.

Samuel H. French for Respondents.

HOUSER, J.-Plaintiffs have presented a motion to dismiss the appeal of defendant Badaty herein for the reason that he has failed to file his opening brief within the time allowed by rule of this court, and the said defendant has filed a motion to be relieved from such default.

It appears that appellant was first late in filing the transcript on appeal in that while it should have been filed not later than January 3, 1923, it was not until February 12, 1923, that it was actually filed. At that time the attorney representing plaintiffs wrote a letter regarding the matter of further delay to Bernard Potter, Esq., who was representing the appellant. It is not denied that the letter was received by Mr. Potter. A copy of the letter is as follows: "February 12th, 1923.

"Mr. Bernard Potter,

"Title Insurance Building,

"Los Angeles, Calif.

"Dear Mr. Potter:

"I have just signed the stipulation and acknowledged service on your transcript in the Babdaty case, and Parker & Stone told me that they would call for it to-morrow, and it will then be filed. In view of the very considerable delay in filing the transcript, which was inexcusable in your client, I am going to insist on the brief being filed within. the proper time, which, as I figure it, will be on or before Thursday, March 15th. In view of the consideration which I have shown in the matter of the transcript, I think you will agree with me that this is only fair, and will also understand that my complaint in the matter is directed at your client and not at your own good self. "With best personal regards, I am,

"Yours very truly,

"SAMUEL H. FRENCH."

Subdivision 4 of rule II of this court (176 Pac. viii) provides that "within thirty days after the filing of the transcript, the appellant shall file with the clerk his printed points and authorities." As is stated in the letter to Mr. Potter, the appellant's opening brief was due to be filed with