People v. Allington, Cr. A

• Decision Date: 30 March 1951
• Docket Number: Cr. A
• Citation: 229 P.2d 495,103 Cal.App.2d Supp. 911
• Parties: 103 Cal.App.2d Supp. 911 PEOPLE v. ALLINGTON. 2674. Appellate Department, Superior Court, Los Angeles County, California
• Court: California Superior Court

Page 495

229 P.2d 495

103 Cal.App.2d Supp. 911

PEOPLE v. ALLINGTON.

Cr. A. 2674.

Appellate Department, Superior Court, Los Angeles County, California.

March 30, 1951.

Frederic H. Vercoe, Los Angeles, for appellant.

Ray L. Chesebro, City Atty., Donald M. Redwine, Asst. City Atty., Philip E. Grey, Deputy City Atty., of Los Angeles, for respondent.

BISHOP, Judge.

The ultimate question to be answered in this case was whether the defendant had been convicted of one or of two offenses. The answer to that question depended upon the answer to be given to a basic question: does section 647, Penal Code, create one, or a dozen or more, public offenses? We have concluded, not without some misgiving, that but one crime is created, and that the defendant should have but one sentence to serve, although he was convicted under two subdivisions of the section. On this appeal, then, from 'the judgment of conviction' one of the two judgments imposed is eliminated.

The facts of the case put our conclusion to a severe test. According to the evidence, on April 25, the defendant was captured and arrested by the father of a fourteen year old girl just after the defendant had been seen by her peeping into the window of a room in their garage occupied by her as her bedroom. Count I charged that the defendant was a vagrant because of this peeping incident, alleged to have occurred 'on or about April 25.' The defendant concedes that legal sufficiency of the evidence to support the conviction as to Count I.

The defendant strenuously contends, however, that this evidence utterly fails to support his conviction under the second count, by which it was charged, again, that he was a vagrant 'on or about April 25,' this time because he was lewd and dissolute. We are inclined to agree with the defendant as he argues that the facts revealed in connection with the peeping Tom affair were insufficient to show that he was a lewd person. He did peep into the bedroom of a young girl, and his pants were unzipped, when he was arrested, but, without more, it may be this would not be sufficient to substantiate the charge of Count II. But there was more. Two witnesses testified to defendant's actions of a different nature, over a period of some minutes, that took place on February 22 at a different location. The defendant did not attempt at the trial to contradict the testimony, and makes no claim now that the conduct described as having occurred on February 22 did not indisputably stamp him as being a lewd person. He would avoid the effect of the evidence of the events of February 22 by insisting that those events had no place in his trial, because 'You must have positive evidence to prove that a man is a dissolute and lewd person at the time of his arrest in order to justify prosecuting him.' This, we are satisfied, is not the law. If it were, then the defendant could forever escape arrest and prosecution for his vagrancy of February 22, because the two women who observed him did not forthwith either themselves arrest him or call an officer to arrest him. We held in People v. Lund, 1933, 137 Cal.App.Supp. 781, 27 P.2d 958, that a person could be arrested in Los Angeles city on a charge of being a vagrant, the acts proving the charge having occurred some time previously in a neighboring city. We cited and relied upon People v. Craig, 1907, 152 Cal. 42, 91 P. 997, 1000, in which an arrest was held justified of one who was proved to be a vagrant by reason of events preceding the arrest by some three months. It is trus that the Supreme Court observed that the person arrested 'was comporting himself quite consistently with his usual line of conduct at the moment of his arrest.' That, too, can be said of the defendant in this case; his conduct on April 25 was quite consistent with the character he had revealed on February 22; there was no suggestion that he had reformed. In both the Lund and Craig cases, though, the acts that disclosed the vagrant's nature antedated the arrest, and we conclude that one may be successfully prosecuted on the charge of being a vagrant although the necessary proof consists of acts that occurred sometime before the arrest.

Nor does the variance between the date alleged in Count II 'on or about April 25,' and that proved, February 22, afford a good reason for reversing the judgment. People v. Williams, 1945, 27 Cal.2d 220, 226, 163 P.2d 692, 695. See also People v. Rice, 1887, 73 Cal. 220, 221, 14 P. 851; People v. Fuhrman, 1933, 130 Cal.App. 267, 268-269, 19 P.2d 821, 822; People v. Roebling, 1936, 14 Cal.App.2d 586, 589, 58 P.2d 929, 931.

The conviction on each count is thus seen to be supported, and we have it established that the defendant was a vagrant because he was a peeping Tom on April 25, and a vagrant because he conducted himself in a lewd manner on February 22. May he be charged in one complaint with being twice a vagrant, and upon conviction suffer two periods of imprisonment of 180 days each, to run consecutively? The answer depends upon the intention of the legislature to be found in section 647, Penal Code, read in the light of the cases which supply governing principles. We quote the section sufficiently to reveal its pattern:

'1. Every person (except a California Indian) without visible means of living who has the physical ability to work, and who does not seek employment, nor labor when employment is offered him; or

'2. Every beggar who solicits alms an a business, or, * * *

'5. Every idle, or lewd, or dissolute person, or associate of known thieves; or, * * *.

'10. Every common prostitute; or,

'11. Every common drunkard; or,

'12. Every person who loiters, prowls or wanders upon the private property of another, in the nighttime, without visible or lawful business with the owner or occupant thereof; or who while loitering, prowling or wandering upon the private property of another, in the nighttime, peeks in the door or window of any building or structure located thereon and which is inhabited by human beings, without visible or lawful business with the owner or occupant thereof;

'Is a vagrant, and is punishable by a fine of not exceeding five hundred dollars ($500), or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.'

We would doubtless have reached a conclusion contrary to the one we have expressed had we no guides other than three cases dealing with section 337a of the Penal Code. We refer to Matter of Roberts, 1910, 157 Cal. 472, 108 P. 315; People v. Plath, 1913, 166 Cal. 227, 135 P. 954; and People v. Ghio, 1927, 82 Cal.App. 28, 255 P. 205. As originally adopted, section 337a was one sentence, not broken up by numbers, paragraphs or other indications of a break in the thought more damming than semicolons. We quote just enough to make the cases understandable: 'Every person, who engages in poolselling * * *; or who keeps or occupies any room * * *; or who receives, registers, records * * * any * * * bet * * *; or who * * * becomes the custodian or depositary for gain * * * of any money * * *; or who aids * * * in any of * * * said acts, * * * is punishable by imprisonment * * *.' The first of the three cases (Ex parte Roberts) was decided before the section was amended. In an opinion joined in by three of the five Supreme Court Justices who participated in the case, it was said (157 Cal. 474, 108 P. 315): 'Although comprising but a single sentence, section 337a of the Penal Code creates many distinct offenses. * * * It is written in the disjunctive throughout, and the several offenses therein described are apparently as distinct and independent of each other as if they had been enacted in separate sections.'

No authority was cited in connection with the conclusion just quoted, although, as we shall see, some decisions on the point were available, and the decision seems to us to be inconsistent with the decided cases. Whether it is or not is no longer of consequence, for its conclusion received approval in People v. Plath, supra, and the last of our three cases, People v. Ghio, standing upon the first two, declares, 82 Cal.App. 32, 255 P. 206, that each of the six numbered subdivisions into which section 337a is now divided 'constitutes a separate offense, as if it had been enacted in a separate section of the Code.' Section 647, too, is now written with numbered paragraphs, and again we state, the three cases dealing with section 337a would be persuasive authorities that section 647 was to be read as though it created twelve or more separate crimes, were it not for a number of other cases.

We quote from two of the earliest of these other cases. In People v. Shotwell, 1865, 27 Cal. 394, 400, these words appear, taken from Wharton's Criminal Law (141): "Where a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered as representing a stage in the same offense, it has in many cases been ruled, they may be coupled in one count. Thus setting up a gaming table, it has been said, may be an entire offense; keeping a gaming table and inducing others to bet upon it, may also constitute a distinct offense; for either, unconnected with the other, an indictment will lie. Yet, when both are perpetrated by the same person, at the same time, they constitute but one offense, for which one count is sufficient, and for which but one penalty can be inflicted."

We find the case of People v. Frank, 1865, 28 Cal. 507, of particular significance, not only because of its content but even more because of the use that is made of it in later cases. We quote one paragraph, 28 Cal. at page 513: 'The indictment is good, whether it be regarded as containing two counts or but one. Where, in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count, for the reason that...