People v. Deibert

• Decision Date: 23 April 1953
• Docket Number: Cr. 4915
• Citation: 256 P.2d 355,117 Cal.App.2d 410
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. DEIBERT et al.

Page 355

256 P.2d 355

117 Cal.App.2d 410

PEOPLE v. DEIBERT et al.

Cr. 4915.

District Court of Appeal, Second District, Division 2, California.

April 23, 1953.

Hearing Denied May 21, 1953.

Morris Lavine and Albert E. Isenberg, Los Angeles, for appellants.

Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

FOX, Justice.

Defendants were convicted by a jury on three counts of violation of section 702 of the Welfare and Institutions Code. Each appeals from the judgment and from the order denying his motion for a new trial.

About 10:30 p. m., on April 17, 1952, Bob and Leonard, who were each 17 years old and high school students, entered the Pilot Wheel Club at Pismo Beach, California. Bob had a brief conversation with defendant Deibert, who was one of the owners of the cafe. The boys took seats at the bar; Deibert stood only some six feet away when they ordered two 'coke highs'; the bartender, defendant Longley, looked up past the boys for a minute and then mixed the drinks. Bob paid $1.00 for the two drinks, which consisted of whiskey and Coca Cola. During their visit they imbided several more drinks of the same variety for which they paid fifty cents each. Their friend, Larry, also 17 years old and a high school student, joined Bob and Leonard and took a taste from the glass of each. Thereupon Bob bought a 'coke high' for Larry. The boys remained there for about an hour. The trio left the cafe but Bob and Leonard returned about 1:00 a. m., when they were joined by another boy. All were served more 'coke highs.' Bob testified that he and Leonard were served about six such drinks during the evening and early morning.

Longley testified that he did not serve alcoholic beverages to any of these boys and would not have served them such drinks without checking first to see whether they were over 21 because they looked young. Deibert denied having had any conversation with Bob that night. He testified that he did not see the boys on his premises prior to their apprehension by Mr. Sutherland, a State liquor control officer.

Defendants contend that the evidence was insufficient to support the verdict in that it failed to show that any of the minors was 'encouraged to use intoxicating liquor to such an extent that he became idle, dissolute and immoral.' It was not necessary, however, to show that the sale of alcoholic beverages to these minors resulted in their actual entry upon an idle or immoral course of conduct. People v. Whilhite, 49 Cal.App. 246, 250, 193 P. 151. The main purpose of the Juvenile Court Law is to prevent the delinquency of children. By the provisions of section 702, Welfare and Institutions Code, any act or omission which 'tends to cause or encourage' a minor to become a delinquent is made criminal. A case is therefore established when the evidence proves acts or omissions on the part of the defendants which tend to cause or encourage the minors to lead an idle, dissolute, lewd or immoral life. People v. Calkins, 48 Cal.App.2d 33, 35, 119 P.2d 142; People v. Cohen, 62 Cal.App. 521, 526, 217 P. 78; People v. Kinser, 99 Cal.App. 778, 782, 279 P. 488. Whether serving alcoholic beverages to a minor tends to cause him to become an idle, lewd, dissolute or immoral person is essentially a question for the jury. People v. Calkins, supra; People v. McDougal, 74 Cal.App. 666, 674, 241 P. 598. The jury impliedly found that the minors were served 'coke highs,' containing whiskey and Coca Cola, by the defendants at the Pilot Wheel Club bar and that the furnishing of such drinks tended to cause them to come within the purview of section 700(k) of the Welfare and Institutions Code. Such a finding is reasonable and is fully justified by the evidence. People v. Perfetti, 88 Cal.App. 609, 614, 264 P. 318; People v. De Leon, 35 Cal.App. 467, 470-471, 170 P. 173; People v. Haney, 100 Cal.App. 295, 299, 279 P. 1054.

Deibert claims the evidence fails to show that he 'participated in any act or omitted to perform any duty which would tend to cause the minors to lead an idle, dissolute and immoral life.' The testimony of Bob that he engaged Deibert in conversation when he and Leonard first went into the club; that Deibert was only about six feet away when he ordered two 'coke highs' from Longley; that the latter, upon receiving Bob's order for such alcoholic beverages, looked past him briefly in the direction of Deibert and then filled the order, justified an inference on the part of the jury that Longley, the bartender, sought and received the approval of Deibert before he served the minors the first 'coke highs.' The minority of the boys must have been apparent in view of Longley's statement that he would not have served them because they looked so young. Furthermore, the jury had an opportunity to see them on the stand and appraise the youthfulness of their appearance. It would, of course, have been unnecessary for Longley to secure Deibert's consent to serve the boys if the drinks ordered had been nonalcoholic. Such tacit approval could reasonably be inferred to apply to the serving of subsequent alcoholic drinks. It is thus plain that Deibert did participate in an act and omit to perform a duty which resulted in these boys being served a number of drinks containing alcohol. The jury could reasonably have concluded that such conduct had a tendency to cause the minors to become delinquent.

Defendants also challenge the sufficiency of the evidence on the theory that the words 'idle, dissolute, lewd, or immoral' (see sec. 700(k) Welfare & Institutions Code) refer to sexual misconduct and that none was shown. They are in obvious error. 'Idle' certainly does not have such a connotation. It means: not occupied or employed; to loaf or dissipate one's time. See Webster's New International Dictionary, 2d Ed. The term 'immoral' is not confined to sexual matters Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 740, 227 P.2d 449.

Defendants contend that section 22, Article XX of the California Constitution and the Alcoholic Beverage Control Act, Gen.Laws, Act 3796, cover the entire field of liquor control and any violations thereof, thereby precluding the prosecution of defendants under section 702 of the Welfare and Institutions Code on a contributing charge. This argument is without foundation. Section 69 of the Alcoholic Beverage Control Act repeals certain specific statutes. It does not include among them section 702 of the Welfare and Institutions Code. '* * * when the Legislature repeals certain acts and excludes mention of other acts even though they refer to the same subject, it is the intention of the Legislature to leave standing those acts which are not mentioned.' In re Zadro, 16 Cal.App.2d 398, 399-400, 60 P.2d 577, 578, 986. Thus the effectiveness of section 702 of the Welfare and Institutions Code in dealing with conduct involving alcoholic beverages which tend to contribute to the delinquency of minors remains undiminished. Here the acts of the defendants are punishable because they have a tendency to cause minors to become delinquent. This aspect of defendants' acts is not covered by the Alcoholic Beverage Control Act. By legislative design such acts constitute an independent offense. See People v. Baker, 38 Cal.App. 28, 31-32, 175 P. 88.

Defendants attack the constitutionality of section 702 of the Welfare and Institutions Code as applied in the instant case, asserting that it is too vague, indefinite and uncertain to form the basis of a criminal charge and hence invalid under the due process clause of the Fourteenth Amendment to the Constitution of the United States. They contend that the words 'dissolute' and 'immoral' contained in the language of the statute and incorporated in the charging clause of the information are not sufficiently definite to inform those subject to its sanctions what type of conduct is thereby denounced. This challenge is not well taken. Where a statute contains a reasonably adequate disclosure of the legislative intent regarding an evil to be combatted in language giving fair notice of the practices to be avoided, a court will be slow to say that such a statute is too indefinite to be enforced. The complexities of the social problems dealt with by the Legislature require that a practical construction be given to the language employed by the draftsmen of legislation lest their purposes be too easily nullified by over-refined inquiries into the meanings of words. 'Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible.' People v. Kennedy, 21 Cal.App.2d 185, 193, 69 P.2d 224, 229. The use of words of general meaning is the essence of our code system. Thus, in a sphere so vital to the community as the welfare of its youth, the words used in a statute designed to enable the Legislature to come to grips effectively with the problems of juvenile delinquency should be upheld where their frequent use in penal statutes gives assurance that they are understood by men of ordinary intelligence.

'To comply with the constitutional requirement of due process of law, the crime for which a defendant is being prosecuted must be clearly defined, but it is only necessary that the words used in the statute be well enough known to enable those persons within its reach to understand and correctly apply them. 'To make a statute sufficiently certain to comply with constitutional requirements, it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited.' [Citation.]

'Although higher standards of certainty will be required of penal than of civil statutes [citation], a statute is sufficiently certain if it employs words of long usage or with a common law meaning, 'notwithstanding an element of degree in the definition as to which estimates might differ [citations].'' Lorenson v. Superior Court, 35 Cal.2d 49, 60, 216...