[1] There is no merit in petitioner's contention that the complaint does not state facts sufficient to constitute a public offense. The law does provide such a penalty as is here imposed for the commission of the offense of which the said defendant was convicted. Section 20, subdivision (a) of the Motor Vehicle Act (Stats. 1919, c. 147, p. 215) provides that "The driver or operator of any vehicle in or upon any public highway shall drive or operate such vehicle in a careful manner with due regard for the safety and convenience of pedestrians and of all other vehicles or traffic upon such highway, The same section specifically sets forth other rules to be followed in the operation of vehicles on the public highway, as, for instance, the procedure to be followed in passing and overtaking other vehicles on the highway and turning at intersections.

a

It has recently been held by this court, in the matter of the Application of John H. Murphy, on Habeas Corpus, ante, p. 286 [212 Pac. 30], that subdivision (a) of section 20, herein before quoted, "prohibits the operation of vehicles in an unsafe manner. . . There is, therefore, direct provision of the statute which provides that vehicles. shall be driven in a careful manner, or, in other words, which prohibits vehicles from being driven in a careless manner without regard to the safety and convenience of others.

[2] The jurisdiction of such offenses is not left, as is petitioner's contention, to the civil courts or to the motor. vehicle department. Section 32 (a) of the Motor Vehicle Act provides that "Excepting as in this act otherwise provided, or where a different penalty is expressly fixed by this act, any person violating any of its provisions, or knowingly making a false statement or knowingly concealing a material fact or otherwise committing a fraud in an application for the registration of a vehicle, or in an application for an operator's or chauffeur's license, shall be guilty of a misdemeanor, and upon conviction thereof, unless in this act otherwise provided, shall be punished by a fine not exceeding five hundred dollars or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment." The offense in question, reckless driving, as above pointed out, was contemplated and covered by

and came within the purview of the provisions of section 20 (a). Petitioner herein, by driving recklessly, was guilty of a violation of that provision of the Motor Vehicle Act, and the penalty provided in section 32 (a) was properly imposed.

[3] The revocation of the operator's license for reckless driving, as provided in section 22 of the statute, was not intended as a sole penalty to be imposed, as is contended by petitioner. On the contrary, the legislative intent to impose an additional penalty for the wanton disregard of the life and safety of others is shown by a review of the Motor Vehicle Act in its entirety and particularly by a consideration of those provisions of that act which provide both directly and by necessary implication for the revocation of an operator's license, not as a substitute for but as a supplement to any other penalty imposed. For instance, subdivision (c) of section 32 provides that "In addition to any or all other punishments provided in this act and imposed by the court upon any person for violation of any of the provisions of this act, the court may in its discretion, suspend an operator's or chauffeur's license for a period of not to exceed thirty days, . . ." Again, section 32 (b) provides that "immediately upon receipt by the department of information concerning the third conviction within one year of any person for the violation of any of the provisions of section 22 of this act, the department shall forthwith revoke the operator's or chauffeur's license. . . Obviously, since it is upon information of conviction that the license is to be revoked, the revocation must necessarily have been intended as an additional penalty.

The fact that in making the charge in the complaint the exact language of the statute was not used does not, of course, vitiate the complaint. It is sufficient if the pleadings are substantially in the language of the statute and it is not necessary that the language be followed literally. (In re Avdalas, 10 Cal. App. 507 [102 Pac. 674].) Practically the only deviation from the words of the statute is the substitution of the words "in a reckless manner" in place of the words "not careful." The only distinction is that the one is stated in a negative and the other in a positive manner. Certainly if petitioner herein was guilty

of driving in a reckless manner he was guilty of driving in a manner not careful.

There is some question as to whether the petitioner is charged with the violation of section 20 of the Motor Vehicle Act or section 22 (a) of the same act. The two provisions are practically the same, both providing that vehicles shall not be driven in an unsafe manner. It is, therefore, immaterial to the petitioner whether he is charged with a violation of one or the other.

The writ is dismissed and the petitioner remanded to the custody from whence he came.

Lawlor, J., Myers, J., Waste, J., Kerrigan, J., Wilbur, C. J., and Seawell, J. concurred.

Rehearing denied.

In denying a rehearing the court filed the following opinion on March 1, 1923:

THE COURT.-The petition for rehearing is denied. [4] 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.

Lennon, J., Wilbur, C. J., Kerrigan, J., Waste, J., Myers, J., and Seawell, J., concurred.

[S. F. No. 9802. In Bank.-January 31, 1923.]

GEORGE J. MARTIN, Appellant, v. ERNEST H. HILDEBRAND et al., Respondents.

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[1] HOMESTEADS — PRIOR LIENS — EXECUTION SALE. — In view of the fact that the proceedings authorized by section 1245 et seq. of the Civil Code for subjecting homesteaded property to execution are not made dependent upon the existence or nonexistence of liens upon the property, and since the buyer on an execution sale takes only the interest of the judgment debtor at the time of levy, prior liens on the property are unaffected by the sale and the interest acquired by the purchaser is the precise interest of the homestead claimant freed, however, from the burden of the homestead. [2] ID. CONVEYANCE AFTER EXECUTION -EFFECT OF.-A conveyance of homesteaded property after the levy of an execution thereon does not deprive the judgment creditor of his right to have the property sold, since the execution is a lien upon the property from the time it is levied and the transferee takes subject to prior valid liens.

[3] ID.-APPOINTMENT OF APPRAISERS-SALE OF HOMESTEAD-DUTY OF COURT. Where, on the hearing of an application under section 1245 et seq. of the Civil Code for the appointment of persons to appraise the value of a homestead on which an execution had been levied and returned unsatisfied, it was admitted that the property exceeded in value the amount of the homestead exemption and that it could not be divided without material injury, the court properly refused to appoint appraisers, but erred in refusing to direct the sheriff to proceed with the execution and in directing the issuance of and refusing to recall an alias writ of execution.

APPEAL from an order of the Superior Court of the City and County of San Francisco denying an application for the appointment of appraisers of a homestead and from orders refusing to direct the sheriff to proceed with the sale, directing the issuance of an alias writ of execution. and refusing to recall such alias writ. James M. Troutt, Judge. Orders, excepting refusal to appoint appraisers, reversed.

The facts are stated in the opinion of the court.

John H. Crabbe for Appellant.

190 Cal.-24

Stoney, Rouleau, Stoney & Palmer and Paul A. McCarthy for Respondents.

KERRIGAN, J.-The plaintiff having recovered a judgment for some eight hundred dollars against George H. Chiossi, one of the defendants herein, a writ of execution was issued thereon, and on September 24, 1920, levied upon real property of said defendant and his wife, consisting of a lot of land 25 feet wide by 12712 feet deep, situate in the city and county of San Francisco, upon which was a two-story and basement dwelling-house. These persons had theretofore declared a homestead upon said premises, and the sheriff accordingly made his return to that effect and that he was unable to satisfy the judgment. Within sixty days from the date of the levy the plaintiff, acting under the provisions of section 1245 et seq. of the Civil Code, made application to the court for the appointment of persons to appraise the value of the homestead, setting up in his application the facts required by section 1246 of said code, namely, that an execution had been levied upon the homestead, describing it, and that its value exceeded the amount of the homestead exemption, etc. This was served upon the homestead claimants. At the time appointed for the hearing thereof they made no appearance, but the defendants Hildebrand and Lettich appeared, having theretofore filed a so-called answer to said application. At the hearing they conceded the filing of said answer to be unauthorized, but requested that it be considered as an affidavit of the facts therein stated. In said answer or affidavit the allegations contained in the application for appointment of appraisers were not denied, but certain facts were alleged therein and offered as a ground for the denial of the application, the burden of which was that said Hildebrand and Lettich were now the owners of said real property, having taken a conveyance thereof since the levy of said execution; that at the time of the levy it was encumbered by liens ranking prior to the homestead, the sum of which, added to the homestead exemption, was far in excess of its value-which, however, was conceded to be superior to five thousand dollars-so that a sale thereof could not produce anything to be applied to the satisfaction