People v. Smith

• Decision Date: 23 June 1958
• Docket Number: Cr. A
• Court: California Superior Court
• Parties: 161 Cal.App.2d Supp. 860 PEOPLE of the State of California, Plaintiff and Respondent, v. Eleazar SMITH, Defendant and Appellant. 3792. Appellate Department, Superior Court, Los Angeles County, California

Page 636

327 P.2d 636

161 Cal.App.2d Supp. 860

PEOPLE of the State of California, Plaintiff and Respondent, v. Eleazar SMITH, Defendant and Appellant.

Cr. A. 3792.

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

June 23, 1958.

Brock, Easton, Fleishman & Rykoff, Hollywood, for appellant.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., William E. Doran, Deputy City Atty., Los Angeles, for respondent.

DAVID, Judge.

The defendant Smith appeals from a judgment based upon his conviction under Los Angeles Municipal Code, (Ordinance No. 77,000 as amended) pursuant to the complaint which charged that he violated paragraph 2 of section 41.01.1 thereof, in that he 'did wilfully and unlawfully * * * have in his possession an obscene and indecent writing, book, pamphlet, picture, photograph and drawing, to wit: Sweeter Than Life, in a place of business where magazines, books, pamphlets, papers and pictures were sold and kept for sale.'

The ordinance provisions in question read in part as follows: 'Sec. 41.01.1 Indecent Writings, Etc.--Possession Prohibited:

'It shall be unlawful for any person to have in his possession any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, * * * in any of the following places:

'1. In any school, school-grounds, public park or playground or in any public place, grounds, street or way within 300 yards of any school, park or playground;

'2. In any place of business where icecream, soft drinks, candy, food, school supplies, magazines, books, pamphlets, papers, pictures or postcards are sold or kept for sale;

'3. In any toilet or restroom open to the public;

'4. In any pool room or billiard parlor, or in any place where alcoholic liquor is sold or offered for sale to the public; * * *.'

Appellant's contentions cannot be sustained:

(1) The ordinance does not violate the First Amendment of the United States Constitution. Under the California Penal Code sec. 311 dealing with obscenity, the United States Supreme Court has held that 'obscenity is not within the area of constitutionally protected speech or press.' Roth v. United States, (Alberts v. California) 1957, 354 U.S. 476, at page 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498.

(2) The characterization as 'obscene' is not too indefinite to constitute a valid standard. In the case last cited, the trial judge applied the test laid down in People v. Wepplo, 1947, 78 Cal.App.2d Supp. 959, 178 P.2d 853, which was approved by the U. S. Supreme Court in the Alberts case, 354 U.S. at page 489, 77 S.Ct. at page 1311.

(3) Under any test, the book concerned in this prosecution was properly held to be obscene by the trial court, and we share such a conclusion upon our independent view of the evidence, if that be necessary in view of the assertion of constitutional right, though such a right is clearly non-existent. Alberts v. California, 1957, 354 U.S. 476, 485-486, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Obscenity is not constitutionally protected. The 'community standard' is, as in other criminal matters, to be determined by the trier of the fact. Parmelee v. United States, 1940, 72 App.D.C. 203, 113 F.2d 729, 741.

The police power of the state in such matters is not restrained by the definitions applied by the federal courts to the federal question of admission of books to the country or to the mails. A national common-denominator of morality may be considerably less than that in a state, which has the right to set, and to adhere to, its own standards in such matters. U.S.Const. Amend. X. That any obscene book or picture may be popular is no ground for holding that it may not be suppressed, since that condition may be exactly the occasion for legislative action against it to protect the public morals. Such legislation preeminently falls within state police power. Lawton v. Steele, 1893, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385.

We reach this conclusion, also, when we have considered the book as a whole, under tests that the appellant contends are applicable. There are obvious common-sense limits to the 'over all' view. We are not persuaded that a bawdy house is any the less a brothel, because many of the rooms of the house may be occupied with dining and dancing, in view of what goes on in the bedrooms. A book is not necessarily clean or not obscene because some of the chapters or paragraphs leading to the bedroom, couch, summerhouse or other available place themselves do not describe the details of adulterous fornication nor rape. Cf. Besig v. United States, 9 Cir., 1953, 208 F.2d 142, 146.

(4) The defendant offered expert witnesses to testify what psychological effect the prurient material in question would have on a normal average person. In California, this is no more the subject of expert testimony than what the conduct of a reasonable and prudent person would be in a negligence action. This is for the trier of the fact. People v. Wepplo, supra, 78 Cal.App.2d Supp. 959, 178 P.2d 853; cf. United States v. Kennerley, D.C. 1913, 209 F. 119, 121. Nor was it error to exclude evidence as to the contents of other books, alleged to be no different or even more sexually titillating, on the theory that legislation is invalid which seeks to restrain that which is popular. Pornography has not been popular enough to induce the state and city legislators who represent the populace at large to change the legislative policies, or to redefine the common understanding of the meanings of well-established English words. The great quarrel in this field actually seems not to be with the definition of 'obscenity' but with its application, to particular states of fact. We have no such difficulty in this case. We have found that the book in question is obscene, not merely that there is sufficient evidence to support the implied finding of the trial court to that effect, keeping in mind what we said in People v. Wepplo, supra, 1947, 78 Cal.App.2d Supp. 959, 961, 178 P.2d 853, in which obscenity was defined in construing Cal.Penal Code sec. 311(3).

(5) The Los Angeles city ordinance No. 77,000 (known as the Los Angeles Municipal Code) section 41.01.1, has the full force of a statute of the state within the limits of the city (Odd Fellows' Cemetery Ass'n v. San Francisco, 1903, 140 Cal. 226, 230, 73 P. 987; Boyd v. City of Sierra Madre, 1919, 41 Cal.App. 520, 183 P. 230), except so far as it is 'in conflict with general laws.' Cal.Const. Art. XI, sec. 11; Simpson v. City of Los Angeles, 1953, 40 Cal.2d 271, 278, 253 P.2d 464, appeal dismissed 346 U.S. 802, 74 S.Ct. 37, 98 L.Ed. 333, rehearing denied 346 U.S. 880, 74 S.Ct. 118, 98 L.Ed. 387.

In California, this police power of cities is one of the oldest municipal powers. Cal.Const. (1879) Art. XI, sec. 11, perpetuated the power that was granted in the earliest charters and general laws for organization of municipal corporations in California, repeated and applied many times before 1879. (For instance, Charter of Sacramento, Cal.Stats.1850, p. 70, sec. 5; idem, San Diego, p. 122, sec. 5; idem, San Jose, p. 125, sec. 5; idem, for incorporation of towns, p. 128-129, sec. 6; idem, for incorporation of cities, p. 87-88, sec. 11). In the 1879 constitution, article XI related to local government, and the same section number, 11, was retained, as formerly pertained to this power in the Act for Incorporation of Cities. Before the Constitution of 1879, such power was conferred by the legislature. Now, it is conferred by the constitution itself. Prior to 1879, the numerous statutes and special charters gave full power to cities to pass ordinances 'not repugnant * * * to the laws of this State.' Prior to 1879, the laws applying to cities were sometimes general and often special, but in 1879 by Art. IV, sec. 25, the legislature was forbidden to pass 'local or special laws * * * Creating offices, or prescribing the powers and duties of officers in counties, cities, cities and counties, townships, election or school district.'

Hence, Art. XI, sec. 11 vested and vests power in cities to pass police regulations 'not in conflict with general laws.' (Emphasis added.) Appellant asserts that there is such a conflict here between Penal Code sec. 311 and the ordinance in question.

Under the ordinance, it is illegal for a person to 'have in his possession any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, figure, * * * of any kind in any of the following places: * * * 2. In any place of business where * * * school supplies, magazines, books, pamphlets, papers, pictures or postcards are sold or kept for sale; * * *' (Municipal Code, sec. 41.01.1)

Penal Code sec. 311 provides, so far as applicable: 'Every person who wilfully and lewdly, either: * * * 3. Writes, * * * sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper, or book; * * * is guilty of a misdemeanor.' Municipal Code sec. 41.01.1 is more restrictive since it eliminates the requirement that a sale be made 'lewdly' and in making it illegal to possess such material in such a place of business, irrespective of a lewd intent to sell it or to keep it for sale.

The city ordinance is more restrictive than the Penal Code sec. 311. Under the Penal Code section scienter is required. The defendant must possess the obscene material 'wilfully and unlawfully' and with 'lewd' intent. People v. Wepplo, supra, 1947, 78 Cal.App.2d Supp. 959, 178 P.2d 853; Matter of Ahart, 1916, 172 Cal. 762, 159 P. 160.

There is no conflict. Wilful possession of an obscene book in a bookstore is not made an offense under the Penal Code provision, but it is under the city ordinance. Defendant could not have been prosecuted under Penal Code sec. 311 for wilfully and unlawfully possessing the material in a bookstore without more. This fact alone demonstrates that the municipal ordinance is not in conflict with the general law. A prosecution may be had under an ordinance and a statute (...