138 Cal.App.2d Supp. 909, 3350, People v. Alberts

• Docket Nº: 3350
• Citation: 138 Cal.App.2d Supp. 909, 292 P.2d 90
• Party Name: People v. Alberts
• Case Date: December 29, 1955
• Court: Superior Court of California

Page 909

138 Cal.App.2d Supp. 909

292 P.2d 90

THE PEOPLE, Respondent,

v.

DAVID S. ALBERTS, Appellant.

Crim. A. No. 3350.

Superior Court of California, Appellate Division, Los Angeles.

Dec. 29, 1955

Page 910

COUNSEL

C. Richard Maddox and Stanley Fleishman for Appellant. A. L. Wirin, as Amicus Curiae on behalf of Appellant. S. Ernest Roll, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent

OPINION

BISHOP, J.

The defendant was convicted on two charges based on section 311 of the Penal Code: that he had lewdly kept for sale obscene and indecent books; and that he had lewdly written, composed, and published an advertisement of them. A new trial was denied, and a sentence (its terms not divulged) was imposed. The appeal is from the order and judgment.

Section 311, Penal Code, declares a large number of acts, if lewdly done, to be a misdemeanor. Subdivision 3 of the section alone lists some 19 of these acts, and in the first count of the complaint it was charged that the defendant had done all of them. Whatever may be said about the possibility that one who swears to such a complaint is guilty of perjury (for there was not the slightest proof that the defendant had committed most of the acts charged), and that a decent regard to fair play would dictate that some attempt be made to have the charge fit the known facts, it is not legal error to charge them all in one count. (See People v. McClennegen (1925), 195 Cal. 445, 452 ; Bealmear v. Southern Calif. Edison Co. (1943), 22 Cal.2d 337, 340-343 [22-23]; People v. Rosenbloom (1931), 119 Cal.App.Supp. 759, 762 [230.]; and People v. Allington (1951), 103 Cal.App.2d Supp. 911, 914-919 [497-500].)

Two other facts support our conclusion that a reversal should not be had because of the shotgun character of pleading. The first is, that even if it were error to charge the many acts with reference to many things, with no expectation of proving but a few of them, no attack was made upon the complaint by demurrer, as may now be done. (Pen. Code, section 1004.) Moreover, while the type of pleading being considered lends itself to an unfair prosecution, actually, in this case, the defendant was not prejudiced; he

Page 911

would have been no better off had the charge been simply that he kept obscene books for sale.

The words "obscene and indecent" as used in subdivision 3 of section 311, are not unconstitutionally indefinite. As early as 1896 the United States Supreme Court knew their meaning. (Swearingen v. United States (1896), 161 U.S. 446, 451 [16 S.Ct. 562, 40 L.Ed. 765, 766.]), and a large number of cases since then have been decided on the theory that their meaning was not obscure. (See annos., 76 A.L.R. 1099, and People v. Wepplo (1947), 78 Cal.App.2d Supp. 959, 961 [855].) To be sure,...