Erlich v. Municipal Court of Beverly Hills Judicial Dist.
Decision Date | 20 March 1961 |
Citation | 360 P.2d 334,55 Cal.2d 553,11 Cal.Rptr. 758 |
Court | California Supreme Court |
Parties | , 360 P.2d 334 David ERLICH, Petitioner, v. MUNICIPAL COURT OF the BEVERLY HILLS JUDICIAL DISTRICT, Respondent, People, Real Party in Interest. L. A. 26023. |
Joseph W. Fairfield and Ethelyn F. Black, Los Angeles, for petitioner.
No appearance for respondent.
William B. McKesson, Dist. Atty., Harry Wood, Harry B. Sondheim and Robert J. Lord, Deputy Dist. Attys., Los Angeles, for real party in interest.
Petitioner was charged in the Municipal Court of Beverly Hills with a violation of section 383b of the Penal Code. He is seeking a writ of prohibition to prohibit that court from any further proceedings against him on that charge. The charging part of the complaint alleges that defendant 'did willfully and unlawfully and with intent to defraud sell to the Beverly Hilton Hotel chicken breasts which were not kosher and not prepared under and from a product or products sanctioned by the Orthodox Hebrew Religious requirements, having falsely represented the same chickens to be kosher and to have been prepared under and from a product or products sanctioned by the Orthodox Hebrew Religious requirements in violation of Section 383b, Penal Code.'
The portions of Penal Code, section 383b, relevant to this proceeding read as follows: 'Every person who with intent to defraud, sells or exposes for sale any meat or meat preparations, and falsely represents the same to be kosher, whether such meat or meat preparations be raw or prepared for human consumption, or as having been prepared under and from a product or products sanctioned by the orthodox Hebrew religious requirements * * * is guilty of a misdemeanor * * *.
'The word 'kosher' is here defined to mean a strict compliance with every Jewish law and custom pertaining and relating to the killing of the animal or fowl from which the meat is taken or extracted, the dressing, treatment and preparation thereof for human consumption, and the manufacture, production, treatment and preparation of such other food or foods in connection wherewith Jewish laws and customs obtain and to the use of tools, implements, vessels, utensils, dishes and containers that are used in connection with the killing of such animals and fowls and the dressing, preparation, production, manufacture and treatment of such meats and other products, foods and foodstuffs.' (Emphasis added.)
Petitioner alleges that the statute, and particularly the language emphasized, is so vague, ambiguous, indefinite and uncertain as to be unenforceable and in this connection petitioner alleges: 'that no two Rabbis can agree as to the full extent of the meaning of the word 'kosher' * * *' and that '(s)ince Penal Code § 383b defining (sic) kosher as a strict compliance with every Jewish law and custom, any slight variance on the part of your petitioner from the personal doctrine of a Rabbi convicts him of the crime, even if the sentiment does not meet the approval of other Rabbis.'
In considering this claim advanced by petitioner, it is relevant to review the history, both legislative and judicial, of the provisions of the New York Penal Law upon which Penal Code, section 383b, was obviously patterned. In 1915 the New York Legislature added to the Penal Law of that state section 435, subdivision 4, McKinney's Consol. Laws, c. 40, which made any person guilty of a misdemeanor who, with intent to defraud, 'sells or exposes for sale any meat or meat preparation and falsely represents the same to be kosher, or as having been prepared under and of a product or products sanctioned by the orthodox Hebrew religious requirements * * *.' People v. Atlas, 183 App.Div. 595, 170 N.Y.S. 834, 835. In the Atlas case, decided in 1918, the constitutionality of this section was attacked on substantially the same grounds urged by petitioner in his present attack on Penal Code, section 383b. We quote from that decision (170 N.Y.S. at pages 835-836); This ruling was affirmed without opinion by the Court of Appeals of New York. People v. Atlas, 230 N.Y. 629, 130 N.E. 921.
In 1924 in Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402, the Supreme Court of the United States passed upon the constitutionality of a successor statute to New York Penal Law, section 434, subdivision 4 ( ), containing the same basic provision: 'Sells or exposes for sale any meat or meat preparation and falsely represents the same to be kosher, or as having been prepared under and of a product or products sanctioned by the orthodox Hebrew religious requirements * * *.' 266 U.S. at page 498, 45 S.Ct. at page 141. Against the claim that 'the word 'kosher' and the phrase 'orthodox Hebrew religious requirements' are so indefinite and uncertain as to cause the statutes to be unconstitutional for want of any ascertainable standard of guilt' (266 U.S. at page 501, 45 S.Ct. at page 142), the United States Supreme Court, after citing and quoting from People v. Atlas, supra, added: ...
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