161 Cal.App.2d Supp. 860, 3792, People v. Smith

Docket Nº:3792
Citation:161 Cal.App.2d Supp. 860, 327 P.2d 636
Party Name:People v. Smith
Case Date:June 23, 1958
Court:Superior Court of California

Page 860

161 Cal.App.2d Supp. 860

327 P.2d 636

THE PEOPLE, Respondent,



Civ. A. No. 3792.

Superior Court of California, Appellate Division, Los Angeles.

June 23, 1958

Page 861


Brock, Easton, Fleishman &amp Rykoff for Appellant. Roger Arnebergh, City Attorney (Los Angeles), Philip E. Grey, Assistant City Attorney, and William E. Doran, Deputy City Attorney, for Respondent



The defendant Smith appeals from a judgment based upon his conviction under Los Angeles Municipal Code, (Ordinance No. 77,000 as amended) pursuant to the complaint which charged that he violated paragraph 2 of section 41.01.1 thereof, in that he "did wilfully and unlawfully ... have in his possession an obscene and indecent writing, book, pamphlet, picture, photograph and drawing, to wit: Sweeter Than Life, in a place of business where magazines, books, pamphlets, papers and pictures were sold and kept for sale."

The ordinance provisions in question read in part as follows: "Sec. 41.01.1 Indecent Writings, Etc.--Possession Prohibited: "It shall be unlawful for any person to have in his possession any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, ... in any of the following places:

"1. In any school, school-grounds, public park or playground

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or in any public place, grounds, street or way within 300 yards of any school, park or playground;

"2. In any place of business where ice-cream, soft drinks, candy, food, school supplies, magazines, books, pamphlets, papers, pictures or postcards are sold or kept for sale;

"3. In any toilet or restroom open to the public;

"4. In any pool room or billiard parlor, or in any place where alcoholic liquor is sold or offered for sale to the public;

* * *"

Appellant's contentions cannot be sustained:

(1) The ordinance does not violate the First Amendment of the United States Constitution. Under the California Penal Code, section 311, dealing with obscenity, the United States Supreme Court has held that "obscenity is not within the area of constitutionally protected speech or press." (Roth v. United States (1957), 354 U.S. 476 at 485 [77 S.Ct. 1304, 1 L.Ed.2d 1498].)

(2) The characterization as "obscene" is not too indefinite to constitute a valid standard. In the case last cited, the trial judge applied the test laid down in People v. Wepplo (1947), 78 Cal.App.2d Supp. 959 , which was approved by the U.S. Supreme Court in the Roth case (354 U.S. at 489).

(3) Under any test, the book concerned in this prosecution was properly held to be obscene by the trial court, and we share such a conclusion upon our independent view of the evidence, if that be necessary in view of the assertion of constitutional right, though such a right is clearly nonexistent. (Roth v. United States (1957), 354 U.S. 476, 485-486 [77 S.Ct. 1304, 1 L.Ed.2d 1498].) Obscenity is not constitutionally protected. The "community standard" is, as in other criminal matters, to be determined by the trier of the fact. (Parmelee v. United States (1940), 113 F.2d 729, 741.)

The police power of the state in such matters is not restrained by the definitions applied by the federal courts to the federal question of admission of books to the country or to the mails. A national common- denominator of morality may be considerably less than that in a state, which has the right to set, and to adhere to, its own standards in such matters. (U.S. Const., Amend. X.) That any obscene book or picture may be popular is no ground for holding that it may not be suppressed, since that condition may be exactly the occasion for legislative action against it to protect the public morals. Such legislation preeminently falls within

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state police power. (Lawton v. Steele (1893), 152 U.S. 133 [14 S.Ct. 499, 38 L.Ed. 385].)

We reach this conclusion, also, when we have considered the book as a whole, under tests that the appellant contends are applicable. There are obvious common-sense limits to the "over all" view. We are not persuaded that a bawdy house is any the less a brothel, because many of the rooms of the house may be occupied with dining and dancing, in view of what goes on in the bedrooms. A book is not necessarily clean or not obscene because some of the chapters or paragraphs leading to the bedroom, couch, summerhouse or other available place themselves do not describe the details of adulterous fornication nor rape. (Cf. Besig v. United States (1953), 208 F.2d 142, 146.)

(4) The defendant offered expert witnesses to testify what psychological effect the prurient material in question would have on a normal average person. In California, this is no more the subject of expert testimony than what the conduct of a reasonable and prudent person would be in a negligence action. This is for the trier of the fact. (People v. Wepplo, supra, 78 Cal.App.2d Supp. 959; cf. United States v. Kennerley (1913), 209 F. 119, 121). Nor was it error to exclude evidence as to the contents of other books, alleged to be no different or even more sexually titillating, on the theory that legislation is invalid which seeks to restrain that which is popular. Pornography has not been popular enough to induce the state and city legislators who represent the populace at large to change the legislative policies, or to redefine the common understanding of the meanings of well- established English words. The great quarrel in this field actually seems not to be with the definition of "obscenity" but with its application, to particular states of fact. We have no such difficulty in this case. We have found that the book in question is obscene, not merely that there is sufficient evidence to support the implied finding of the trial court to that effect, keeping in mind what we said in People v. Wepplo, supra (1947), 78 Cal.App.2d Supp. 959, 961, in which obscenity was defined in construing California Penal Code, section 311, subdivision 3.

(5) The Los Angeles city ordinance Number 77,000 (known as the Los Angeles Municipal Code) section 41.01.1, has the full force of a statute of the state within the limits of the city (Odd Fellows' Cemetery Assn. v. City & County of San Francisco (1903), 140 Cal. 226, 230 ; Boyd

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v. City of Sierra Madre (1919), 41 Cal.App. 520 ), except so far as it is "in conflict with general laws." (Cal. Const., art. XI, section 11; Simpson v. City of Los Angeles (1953), 40 Cal.2d 271, 278 , app. dis. 346 U.S. 802 [74 S.Ct. 37, 98 L.Ed. 333], rehearing den. 346 U.S. 880 [74 S.Ct. 118, 98 L.Ed. 387].)

In California, this police power of cities is one of the oldest municipal powers. California Constitution (1879) article XI, section 11, perpetuated the power that was granted in the earliest charters and general laws for organization of municipal corporations in California, repeated and applied many times before 1879. (For instance, Charter of Sacramento, Cal. Stats. 1850, p. 70, section 5; idem, San Diego, p. 122, section 5; idem, San Jose, p. 125, section 5; idem, for incorporation of towns, pp. 128-129, section 6; idem, for incorporation of cities, p. 87-88, section 11.) In the 1879 Constitution, article XI related to local government, and the same section number 11, was retained, as formerly pertained to this power in the act for incorporation of cities. Before the Constitution of 1879, such power was conferred by the Legislature. Now, it is conferred by the Constitution itself. Prior to 1879, the numerous statutes and special charters gave full power to cities to pass ordinances "not repugnant ... to the laws of this State." Prior to 1879, the laws applying to cities were sometimes general and often special, but in 1879 by article IV, section 25, the Legislature was forbidden to pass "local or special laws. ... Creating offices, or prescribing the powers and duties of officers in counties, cities, cities and counties, townships, election or school districts."

Hence, article XI, section 11, vested and vests power in cities to pass police regulations "not in conflict with general laws." (Emphasis added.) Appellant asserts that there is such a conflict here between Penal Code, section 311, and the ordinance in question.


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