Erlich v. Municipal Court of Beverly Hills Judicial Dist.

Decision Date20 March 1961
Citation360 P.2d 334,55 Cal.2d 553,11 Cal.Rptr. 758
CourtCalifornia 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.

DOOLING, Justice.

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); 'Counsel for the appellant argues that the word 'kosher' is an adjective, the definition and meaning of which involves a consideration of the Jewish orthodox religious requirements, which are not precise and definite, and concerning which, according to one witness, thousands of volumes have been written. * * * It is manifest, however, that the Legislature did not intend to use the word 'kosher' in an indefinite sense, but evidently in the ordinary sense in which it is used in the trade, which is to designate meat as having been prepared under and of a product sanctioned by said religious requirements, and, therefore, as I view it, the Legislature has itself definitely defined the word 'kosher' as used in the statute. This construction leaves the statute sufficiently definite, and confines it to those who with intent to defraud sell or expose for sale meat or meat preparation and falsely represent the same as having been prepared under and of a product or products sanctioned by the orthodox Hebrew requirements.' 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 (which had been held constitutional in the Atlas case), 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: 'It thus appears that, whatever difficulty there may be in reaching a correct determination as to whether a given product is kosher, appellants are unduly apprehensive of the effect upon them and their business, of a wrong conclusion in that respect, since they are not required to act at their peril but only to exercise their judgment in good faith, in order to avoid coming into conflict with the statutes. Indeed, putting the statutes aside, such judgment they would be bound to exercise upon ordinary principles of fair dealing. By engaging in the business of selling kosher products they in effect assert an honest purpose to distinguish to the best of their judgment between what is and what is not kosher. The statutes require no more. Furthermore, the evidence while conflicting warrants the conclusion that the term 'kosher' has a meaning well enough defined to enable one engaged in the trade to correctly apply it, at least as a general thing. If exceptional cases may sometimes arise where opinions might differ, that is no more than is likely to occur, and does occur, in respect of many criminal statutes either upheld against attack or never assailed as indefinite. * * * Many illustrations will readily occur to the mind, as, for example, statutes prohibiting the sale of intoxicating liquors and statutes prohibiting the transmission through the mail of obscene literature, neither of which have been found to be fatally indefinite because, in some instances opinions differ in respect of what falls within their terms. Moreover, as already suggested, since the statutes require a specific intent to defraud in order to...

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