People v. Alberts

138 Cal.App.2d Supp. 909 (1955) THE PEOPLE, Respondent,

v.

DAVID S. ALBERTS, Appellant.

California Court of Appeals.

Dec. 29, 1955. C. Richard Maddox and Stanley Fleishman for Appellant.

A. L. Wirin, as Amicus Curiae on behalf of Appellant.

S. Ernest Roll, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent.

BISHOP, J.

The defendant was convicted on two charges based on section 311 of the Penal Code: that he had lewdly kept for sale obscene and indecent books; and that he had lewdly written, composed, and published an advertisement of them. A new trial was denied, and a sentence (its terms not divulged) was imposed. The appeal is from the order and judgment.

[1] Section 311, Penal Code, declares a large number of acts, if lewdly done, to be a misdemeanor. Subdivision 3 of the section alone lists some 19 of these acts, and in the first count of the complaint it was charged that the defendant had done all of them. Whatever may be said about the possibility that one who swears to such a complaint is guilty of perjury (for there was not the slightest proof that the defendant had committed most of the acts charged), and that a decent regard to fair play would dictate that some attempt be made to have the charge fit the known facts, it is not legal error to charge them all in one count. (See People v. McClennegen (1925), 195 Cal. 445, 452 [234 P. 91]; Bealmear v. Southern Calif. Edison Co. (1943), 22 Cal.2d 337, 340-343 [139 P.2d 20, 22-23]; People v. Rosenbloom (1931), 119 Cal.App.Supp. 759, 762 [2 P.2d 228, 230]; and People v. Allington (1951), 103 Cal.App.2d Supp. 911, 914-919 [229 P.2d 495, 497-500].)

Two other facts support our conclusion that a reversal should not be had because of the shotgun character of pleading. [2] The first is, that even if it were error to charge the many acts with reference to many things, with no expectation of proving but a few of them, no attack was made upon the complaint by demurrer, as may now be done. (Pen. Code, 1004.) [3] Moreover, while the type of pleading being considered lends itself to an unfair prosecution, actually, in this case, the defendant was not prejudiced; he [138 Cal.App.2d Supp. 911] would have been no better off had the charge been simply that he kept obscene books for sale.