Kirby v. Municipal Court of Newhall Judicial Dist.

• Decision Date: 30 September 1965
• Citation: 237 Cal.App.2d 335,46 Cal.Rptr. 844
• Court: California Court of Appeals Court of Appeals
• Parties: Clayton W. KIRBY, also known as A. Prinz, Petitioner and Appellant, v. The MUNICIPAL COURT OF the NEWHALL JUDICIAL DISTRICT, Defendant and Respondent, and The PEOPLE of the State of California by Their Attorney Evelle J. YOUNGER, District Attorney for the County of Los Angeles, State of California, Real Party in Interest and Respondent. Civ. 28898

Page 844

46 Cal.Rptr. 844

237 Cal.App.2d 335

Clayton W. KIRBY, also known as A. Prinz, Petitioner and Appellant, v. The MUNICIPAL COURT OF the NEWHALL JUDICIAL DISTRICT, Defendant and Respondent and The PEOPLE of the State of California by Their Attorney Evelle J. YOUNGER, District Attorney for the County of Los Angeles, State of California, Real Party in Interest and Respondent.

Civ. 28898

District Court of Appeal, Second District, Division 3, California.

Sept. 30, 1965.

Hearing Denied Nov. 24, 1965.

Edwin M. Rosendahl, Los Angeles, for petitioner and appellant.

Evelle J. Younger, Dist. Atty., Los Angeles County, Harry Wood, Harry B. Sondheim, Deputy Dist. Attys., for real party in interest and respondent.

ASHBURN, Justice.*

Petitioner Kirby was charged in the municipal court with violation of section 311.5 Penal Code, a misdemeanor. The complaint was filed on June 23, 1964, defendant demurred, same was overruled, and he entered a plea of not guilty. Thereupon he filed in the superior court a petition for writ of prohibition against further proceedings upon the charge because of unconstitutionality of the statute. After argument of the legal question the court denied an alternative writ and petitioner has appealed.

The said statute, section 311.5 Penal Code, provides: 'Every person who writes or creates advertising or solicits anyone to publish such advertising or otherwise promote the sale or distribution of matter represented or held out by him to be obscene, is guilty of a misdemeanor.'

The accusatory pleading alleges that a misdemeanor was committed on June 3 1964 by Kirby, 'who did willfully and unlawfully write and create advertising and promote the sale and distribution of matter represented and held out by said person to be obscene.'

Appellant contends that the statute is void upon its face because it is a 'no intent' obscenity statute, directly in conflict with the First Amendment to the Federal Constitution and with the holding of the United States Supreme Court in Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205.

Section 952 Penal Code of this state provides: 'In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. * * *' [Emphasis added.] This statute does not offend the Constitution of the United States or that of California. (People v. Covington, 1 Cal.2d 316, 319-320, 34 P.2d 1019; People v. Lamb, 204 Cal.App.2d 255, 263, 22 Cal.Rptr. 284; appeal dismissed 371 U.S. 234, 83 S.Ct. 326, 9 L.Ed.2d 495.) Moreover, specific intent (if that be an element of the crime, as appellant contends) is adequately alleged by use of the words 'willfully and unlawfully' found in the instant complaint (Matter of Application of Ahart, 172 Cal. 762, 765, 159 P. 160; People v. Odom, 19 Cal.App.2d 641, 644-646, 66 P.2d 206; People v. Swenson, 127 Cal.App.2d 658, 662-664, 274 P.2d 229; People v. Saffell, 74 Cal.App.2d Supp. 967, 980, 168 P.2d 497; People v. Loeper, 167 Cal.App.2d 29, 33, 334 P.2d 93).

The record does not disclose the text of the subject matter of the advertising alleged to have been held out by defendant to be obscene but it does say that he wrote and created it; so at this juncture of the case it is to be assumed that, as he represented, it was actually obscene and known to defendant to be such.

In this nation, dedicated to the concept of ordered liberty (Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288), there are no absolute personal rights. This applies to preferred liberties such as freedom of speech and the press. All are subject to reasonable limitation and regulation. (Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049; Poulos v. State of New Hampshire, 345 U.S. 395, 405, 73 S.Ct. 760, 97 L.Ed. 1105; Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 459-462, 55 P.2d 177; Chrisman v. Culinary Workers' Local Union No. 62, 46 Cal.App.2d 129, 132-133, 115 P.2d 553; 16 C.J.S., Constitutional Law, § 202 b, p. 990; § 213(5), p. 1107; § 213(7), p. 1111.) In each case of attack upon a statute, ordinance or court rule as unconstitutional there must be a balancing of public welfare against personal rights and a determination of the delicate question of which shall prevail. These principles must form the lode star of our inquiry of where the truth lies in this area of advertising obscene literature.

'[O]bscenity is not within the area of constitutionally protected speech or press.' (Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498.) The word has crystallized through court decisions to mean in this connection nothing less than 'hard-core pornography' (Zeitlin v. Arnebergh, 59 Cal.2d 901, 917-918, 31 Cal.Rptr. 800, 383 P.2d 152) and the question of whether it is shown in any given case is one of law (Zeitlin, supra, pp. 908-910, 31 Cal.Rptr. 800, 383 P.2d 152) where it arises before trial of the accusation. (See footnote 11 on page 908 of 59 Cal.2d, on page 805 of 31 Cal.Rptr., on page 157 of 383 P.2d.) Certainly at the present stage of this case we have only a question of law, for the complaint alleges that defendant wrote and through advertising promoted the sale and distribution of material which he represented and held out to be obscene. If this be true, as we must assume for present purposes, defendant cannot be heard to deny the fact of obscenity which he has avowed to exist.

Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 does not support appellant's contention that section 311.5 is invalid because it is a 'no intent' statute and thus an invasion of the right of free speech. That case did not involve the question here presented. Smith was convicted under a city ordinance that prohibited possession of an obscene book or writing in any place where books are kept for sale. The ordinance was construed by the Appellate Department of the Los Angeles Superior Court as including 'no element of scienter--knowledge by appellant of the contents of the book' alleged to be obscene. It was held that this elimination of the scienter element of the offense of possessing or selling indecent books 'may tend to work a substantial restriction on the freedom of speech and of the press' (p. 150, 80 S.Ct. p. 217.) Also: 'We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold. * * *' (p. 152, 80 S.Ct. p. 218.) The majority opinion concluded as follows: 'We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. Doubtless any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene, but we consider today only one which goes to the extent of eliminating all mental elements from the crime.' (p. 154, 80 S.Ct. p. 219.) * * *

'The existence of the State's power to prevent the distribution of obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise of that power. Cf. Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329. It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.' (p. 155, 80 S.Ct. p. 220.)

The intent held in Smith to be requisite to a valid conviction is not the general intent which inheres in the deliberate doing of an act that violates a law (People v. Dillon, 199 Cal. 1, 7, 248 P. 230; 14 Cal.Jur.2d, § 86, p. 275) but is a specific intent to sell a book known to be obscene,--the element of such knowledge being essential to the existence of the proscribed intent. It is this kind of intent that appellant's counsel say should be made an element of the crime defined in section 311.5,--not a mere intent to advertise for sale a writing which may or may not prove to be pornographic but an intent to proffer for sale one that is known to be of that condemned quality. We hold, as will appear, that the presence of such intent is not requisite to a violation of the statute and that its absence from the law does not offend against any of appellant's constitutional protections.

It is to be observed that section 311.5 relates to one who writes or creates advertising or solicits publication of same or promotes sale or distribution of matter represented to be obscene. So...