[ Back | Home ]
[Cite as Ex Parte Luening, 3 Cal. App. 76; 84
P. 445 (1906).]
Ex parte LUENING.
(Court of Appeal, Second District, California. Feb.
1. Criminal Law--Affidavit of
In a prosecution before a justice of the
peace for a violation of a county ordinance forbidding the carrying of concealed
weapons except as permitted by the sheriff, it was not necessary to set out in
the affidavit of complaint the title and date of passage of the ordinance,
notwithstanding Pen. Code, § 963, requiring private
statutes to be pleaded by reference to their title and date of passage.
A county ordinance prohibiting the carrying of concealed
weapons, except by permit from the sheriff, is a reasonable and valid exercise
of the county's police power.
In the matter of the application of William J.
Luening, Jr., for a writ of habeas corpus. Writ dismissed.
R. E. Bledsoe, for petitioner. I. M. Sprecher,
Dist. Atty., and Henry M. Willis, Deputy Dist. Atty., for respondent.
ALLEN, J. Application for writ of habeas corpus.
The petitioner was charged in a sworn complaint, filed with a justice of the
peace of San Bernardino county, "as a person found in a public place with a
loaded revolver, a deadly weapon, concealed upon his person, in violation of
County Ordinance No. 102." To such charge he entered a plea
of guilty, and judgment followed. Under a commitment issued out of said judgment
he is held in custody. Ordinance No. 102 was adopted by the
board of supervisors of San Bernardino county prior to the arrest of the
petitioner, and is as follows: "Section 1. Any person found in any public place
with a concealed deadly weapon upon his person, is punishable by a fine of not
less than $5.00 nor more than $100.00 or by imprisonment in the county jail not
less than five nor more than one hundred days; provided, however, that the
sheriff of San Bernardino county may grant permits to carry such weapons to
officers and other persons, as he may deem fit."
The claim of petitioner is that the affidavit of complaint did not
confer jurisdiction of the subject-matter upon the justice, because the
ordinance, being a private statute, was not pleaded by reference to its title
and date of passage, as required by section 963 of the Penal
Code, and, there being no general law upon the subject of which the
justice could take judicial notice, the affidavit was fatally (p.446)defective. That, as to the superior courts, ordinances
of cities and counties are private statutes, and should be pleaded as such, is
unquestioned. Tulare v. Hevren, 126 Cal. 226, 58 Pac. 530.
That they are private statutes as to inferior local courts is not clear. In
Ex parte Davis, 115 Cal. 445, 47 Pac. 258, it is said that
when the proceeding is in a municipal court, ordinances of such municipality are
the peculiar laws of that forum, and of which judicial notice will be taken,
because they are among the things which, as to it, are established by law. Code Civ. Proc. § 1875, subd. 2. And such courts are instituted
for the express purpose of enforcing municipal ordinances. We think, upon
analogous principles, the same rule should apply to a justice court when the
proceedings before it involve the violation of a local ordinance of the county.
"Where an offense is created by statute and a penalty inflicted, it is necessary
that the party seeking a recovery should, in general, refer to such statute, but
we do not understand this rule to apply to pleadings in justices' courts, which
are usually without regard to form." O'Callaghan v. Booth and
Deal, 6 Cal. 66; Watson v. Whitney, 23 Cal. 378. It
is true that these observations were with reference to the rules in civil cases,
yet the reason appeals to us in applying it to the pleadings charging the
commission of a local offense.
Petitioner contends, further, that the ordinance is unreasonable,
oppressive and discriminating, that it leaves to the arbitrary will of the
sheriff the right to determine who may enjoy the privileges thereunder, and this
upon the theory that the right to bear arms is a natural right which may not be
prohibited. Whatever may be the source of the right to bear arms, in the general
acceptation of such term, it does not follow as a natural consequence that such
right extends to every conceivable manner in which arms may be borne. The habit
of carrying concealed weapons is one of the most fruitful sources of crime, and,
in our opinion, may be entirely prohibited by the proper authorities. It is true
there may be instances and circumstances under which the bearing of arms in that
manner may be justified. This ordinance by its terms makes ample provision in
relation to such exigencies. Ex parte Cheney, 90 Cal. 617, 27 Pac. 436. It is
clear that no general rule could be established beforehand that would meet the
emergencies of individual cases; therefore, the power to give relief in
particular instances is conferred on certain officers, and it is not to be
presumed that they will exercise it wantonly, or for purposes of profit or
oppression. In re Flaherty, 105 Cal. 566, 38 Pac. 981, 27 L.R.A.
529. If, therefore, the carrying of deadly weapons concealed about the
person, in public places, is a menace to public safety, injurious to the public
welfare, no right so to do exists; and if the legislative body has seen fit to
confer authority upon certain persons under certain circumstances so to act, it
is not taking away a right to do the thing from others, because they have no
such right. In re Flaherty, supra. Legislation in this regard is referable to
the police power, and the body to whom such legislation has been entrusted is to
determine the reasonableness of such regulations as applying to the localities
to which they apply. Nothing appearing which would indicate an abuse of
discretion in this instance, none will be presumed, and this ordinance must be
taken as a reasonable exercise of police power upon the part of the supervisors
of San Bernardino county. In our opinion, the ordinance here involved is valid,
and the petitioner should be remanded.
The writ is dismissed, and the petitioner remanded to the custody of
We concur: GRAY, P. J.; SMITH, J.