In Re McCue

ALLEN, P. J.

Application for writ of

habeas corpus.

Petitioner is serving a sentence. imposed on account of a violation of subdivision 5, section 647, Penal Code. This sub

[766]

division provides: “Every idle or lewd or dissolute person, or associate of known thieves, ... is a vagrant.” It is insisted that this subdivision is void, in that the constituent elements entering into the crime are not defined, and as a consequence one charged thereunder is subject to the arbitrary meaning given by the court to the words employed; that it denounces a penalty against one who is either idle, lewd or dissolute without reference to the circumstances or conditions or acts of such person, or their effect as injuriously affecting the public health or morals. We are inclined to the view that while idleness, whether it be that of the “idle rich” or “idle poor,” is a prolific source of crime, still it is not competent for the legislature to denounce mere inaction as a crime without some qualification. But this cannot be said of lewdness or dissoluteness—terms often used interchangeably but each of which applies to the unlawful indulgence of lust, whether in public or private. “Any practice the tendency of which, as shown by experience, is to weaken or corrupt the morals of those who follow it, ... is a legitimate subject for regulation or prohibition by the state, . . . and unless it clearly appears that a statute enacted for this purpose has no real or substantial relation to these objects, and that the fundamental rights of the citizen are assailed under the guise of a police regulation, the action of the legislative department is conclusive.”

(Ex parte Tuttle,

91 Cal. 590, [27 Pac. 934].) The elements of lewdness and dissoluteness, under the accepted definition of those terms, come directly within the inhibited practices and are proper subjects of regulation and prohibition. The statute, then, is a valid exercise of police power as to these elements, and it is within the power of the court to determine whether one charged comes within the class of lewd or dissolute persons.

(Ex parte Ah Fook,

49 Cal. 404.) The constitutional right of due process of law will not be given such effect as will render impossible laws which are generally admitted to be essential to the safety and well-being of society.