Com. v. Randall

• Court: Superior Court of Pennsylvania
• Writing for the Court: ERVIN
• Citation: 183 Pa.Super. 603,133 A.2d 276
• Parties: COMMONWEALTH of Pennsylvania v. Robert RANDALL, Sophia Wofsy, Appellants.
• Decision Date: 11 June 1957

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133 A.2d 276 183 Pa.Super. 603 COMMONWEALTH of Pennsylvania
v.
Robert RANDALL, Sophia Wofsy, Appellants. Superior Court of Pennsylvania. June 11, 1957.

[183 Pa.Super. 605]

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Herbert Fishbone, David H. Miller, Easton, Justin D. Jirolanio, Bethlehem, for appellant.

Edward G. Ruyak, Dist. Atty., Bethlehem, Bernard [183 Pa.Super. 606] V. O'Hara, Jr., Asst. Dist. Atty., Hellertown, for appellee.

[183 Pa.Super. 605] Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

[183 Pa.Super. 606] ERVIN, Judge.

Defendant, Robert Randall, was found guilty under the Act of June 3, 1953, P.L. 277, § 1, 18 P.S. § 4532, which provides: 'Whoever, being of the age of twenty-one years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of eighteen years * * * is guilty of a misdemeanor * * *.' Defendants, Robert Randall and Sophie Wofsy, were also found guilty of violating Paragraph 1, § 493, of the Liquor Code, 47 P.S. § 4-493, which provides: 'It shall be unlawful (1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.' The cases were tried together, the charges against both defendants having arisen out of the same circumstances and at the same time. Defendants' motions in arrest of judgment and for new trial were denied and sentences were imposed upon the defendants, whereupon the instant appeals were taken by both defendants.

Defendant Randall argues that the above referred to act of 1953 is so vague and indefinite that it violates the due process clause of the 14th Amendment to the United States Constitution, which provides: 'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, [183 Pa.Super. 607] liberty, or property, without due process of law; nor deny to any person within its jurisdiction

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the equal protection of the laws.' It is undoubtedly the law that to comply with this requirement of the Constitution 'a statute must be sufficiently certain and definite to inform the citizen of the acts it is intended to prohibit. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law.' 14 Am.Jur., Criminal Law, § 22; Com. v. Klick, 164 Pa.Super. 449, 453, 65 A.2d 440.

In support of his position, defendant Randall relies heavily on the case of Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 398, 92 L.Ed. 562, which involved a statute of the State of Utah prohibiting a conspiracy on the part of two or more persons 'To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws * * *.' U.C.A. 1943, 103-11-1(5) Thirty-three persons were charged under this act with conspiring to encourage and practice polygamy. The entire statute was stricken down for being too vague and unenforceable. The court, in its opinion, stated: 'It is obvious that this is no narrowly drawn statute. * * * Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order.' It is apparent that the Musser case is not authority for defendant's position that the phrase 'corrupt the morals' is so vague and indefinite that it offends the due process clause of the Constitution. The statute in the Musser case related to acts deemed injurious not only to 'public morals' but also to 'public health * * * or to trade [183 Pa.Super. 608] or commerce, or for the perversion or obstruction of justice or the due administration of the laws.' In the case at bar we are concerned only with the word 'morals' as related to children under the age of 18 years. This is a much more definite and restrictive area than that which was involved in the Musser case. We believe that the word 'morals' has a definite and well-settled meaning. Defendant Randall also placed great reliance upon the case of Hallmark Productions, Inc., v. Carroll, 384 Pa. 348, 121 A.2d 584, 585. In this case the Pa. State Board of Censors had refused to approve display of a motion picture, 'She Should'a Said No,' involving the enticement of people into the sale and use of marijuana. The board, under this statutory authority, found that the film was 'indecent and immoral' and, in the judgment of the board, tended to debase and corrupt morals. In the majority opinion of the Supreme Court the language of the statute was found to be vague and indefinite and therefore unconstitutional. In the majority opinion written by Horace Stern, then Chief Justice, there will be found a review of the decisions of the Supreme Court of the United States on this subject.

The first case reviewed is Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 782, 96 L.Ed. 1098. In that case a New York statute provided for the banning of a motion picture film if it or a part thereof was 'obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime.' Education Law, McK.Consol.Laws, c. 16, § 122. The New York State Board of Regents determined that a certain film examined by them was sacrilegious and ordered a recission of the license to exhibit it. An affirmation of that order by the New York Court of Appeals was reversed by the Supreme Court of the United States. The appellant there argued (1) that [183 Pa.Super. 609] the statute was a violation of the right of free speech and (2) that the term 'sacrilegious' was so vague and indefinite as to constitute a denial of due process. The Burstyn opinion ends with a statement that 'Since the term 'sacrilegious' is the sole standard under attack here, it is not necessary for us to decide, for example, whether a state may censor motion pictures under a clearly drawn statute designed and

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applied to prevent the showing of obscene films. That is a very different question from the one now before us. We hold only that under the First and Fourteenth Amendments a state may not ban a film on the basis of a censor's conclusion that it is 'sacrilegious." Chief Justice Stern then reviews the following cases: Gelling v. State of Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359; Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Superior Films, Inc., v. Department of Education (Commercial Pictures Corp. v. Board of Regents of University of State of New York), 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329. In all of these cases censorship under state acts was stricken down by per curiam opinions citing merely the Burstyn case. At the very end of his opinion in the Hallmark case (384 Pa. at page 358, 121 A.2d at page 589) Chief Justice Stern states: 'It need hardly be added that even if all precensorship of motion picture films were to be held invalid this would not in and of itself affect the right to suppress objectionable films if exhibited, or to punish their exhibitor.' (Emphasis added) In his dissenting opinion, Mr. Justice Musmanno, 384 Pa. at page 367, 121 A.2d at page 594, states: 'After the decision of the Majority will have been handed down, those same shameful, shameless, degrading films may be projected anywhere in Pennsylvania publicly, the distributors and exhibitors being subject only, after the showing, to the...