Ex parte Kearny

Citations

• 55 Cal. 212

Syllabus

<p>Habeas Corpus—Police Court oe San Francisco—Inferior Court—Jurisdiction—Case Criticised.—The Police Court of the City and County of San Francisco is an inferior court of limited jurisdiction, whose powers are conferred, and whose duties and modes of procedure are prescribed, by statute, and to which the rule applies that the evidence of its proceedings must affirmatively show jurisdiction of the person of a defendant, and over the subject-matter; and the remark to the contrary, in Ex parte Murray, 45 Cal. 455, is dictum.</p> <p>Id.—Id.—Id.—Id.—Where it affirmatively appears from the record of the proceedings of an inferior court that a person was tried and sentenced to be punished for an act which is not a crime, the judgment is absolutely void, and a person in custody under such a judgment will be discharged on habeas corpus.</p> <p>Cases Distinguished —Ex parte Watkins, 3 Peters, 193 ; 5 Cranch, 173.</p> <p>Id.—Construction of Ordinance.—To constitute an offense under subd. 3, § 28, of Order Ho. G97, as amended by Order Ho. 1,196 of the City and County of San Francisco—which provides that “ Ho person shall address to another, or utter in the presence of another, any words * * having a tendency to create a breach of the peace”—the words must be uttered in the presence of the person whom they tend to provoke to such breach of the peace.</p> <p>Id.—Id.—Police Court of San Francisco—Interior Court—Jurisdiction.— The petitioner was in custody under a judgment. of the Police Court of San Francisco, condemning him to six months’ imprisonment and the payment of $1,000; and the offense charged in the complaint was, that the petitioner “did willfully and unlawfully utter and address to others, to wit, to a large number of persons then and there assembled * * * certain profane words and language, which words and language then and there had a tendency to create a breach of the peace.” But there was no averment that the words were “ addressed to, or uttered in the presence