EX PARTE LOUIS HELBING, ON HABEAS CORPUS

No. 20,025. Department One December 11, 1884. EX PARTE LOUIS HELBING, ON HABEAS CORPUS. Habeas Corpus—Fraudulently Taking Water from Main—Sufficiency of Complaint.—Where a statute provides that it shall be a misdemeanor for any person to connect any pipe, tube, or other instrument with any water main or pipe for the purpose of fraudulently taking water therefrom, a complaint alleging a connection for such purpose, without charging that the connection was made by means of a pipe, tube, or other instrument, substantially follows the statute, and is sufficient. Petition for a writ of habeas corpus. The facts are stated in the opinion of the court. R. Percy Wright, for Petitioner. Fox & Kellogg, for Respondent. [MAJORITY — The Court] The Court The complaint in the police court charged the offense created by section 499 of the Penal Code. That section reads: “ Every person who, with intent to injure or defraud, connects, or causes to be connected, any pipe, tube, or other instrument with any main, service-pipe, or other pipe, or conduit, or flume for conducting water, for the purpose of taking water from such main, service-pipe, conduit, or flume, without the knowledge of the owner thereof, and with intent to evade payment therefor, is guilty of a misdemeanor.” The complaint avers that Louis Helbing, “ with intent to injure and defraud, etc., without the knowledge of the owners, and with intent to evade payment for the water taken thereby, made connections, and maintained the same, with certain mains and service-pipes of the said Spring Valley Water Works for the purpose of taking water therefrom for the supply of certain tanks and water-works kept and maintained by said Helbing,” etc. The words “ without the knowledge of the owners ” apply to all that follows, including the averments as to the taking of the water, and the intent. The complaint does not in terms charge that the connection was made by means of a pipe, or a tube, or instrument. If it had averred that the defendant connected an “ instrument ” for the purpose of taking water, it would be good. It avers a connection for that purpose, and such connection, if made at all, could be made only by means of some instrument. It is said a connection (for the purpose named) might be made without, in fact, any water being taken; but so might an instrument fail of its purpose. A complaint following the statute is admittedly sufficient. Here the statute was substantially followed. The petitioner is remanded.