People v. Horowitz

BISHOP, J.

At the conclusion of a juryless trial, appellants were convicted of the offense stated in count I of the complaint; count II was dismissed. It is upon the dismissal of count II that appellants pin their hope of a reversal. They contend that if they were not guilty of the charge set forth in the second count, they were not of that contained in the first, and that as the dismissal operated as an acquittal of the one charge, their conviction of the other cannot stand. We find this position untenable.

By three complaints the ten appellants were charged with the same offenses, except for some variation in the dates when the offenses were alleged to have taken place. As illustrative, we may take the two counts placed against eight of the defendants, by which they were accused in count I of violating section 1, Los Angeles city ordinance No. 60587 in that they did, “as owners, managers, producers, directors, actors and agents and in other capacities give, direct, present and participate in, an indecent, obscene, immoral, and impure

drama, play, exhibition, show and entertainment,

[793]

within the presence and hearing of divers youths and others at that certain theatre and playhouse located at 235 South Main Street in said City, which said

drama, play, exhibition, show, and entertainment

then and there tended to corrupt the morals of youths and others then and there present as aforesaid”. In count II the same charge was made, except we find in place of the words italicized (by us) in the first count, the following: “scene, tableau, incident, part, and portion of a drama, play, exhibition, show and entertainment”. In effect, it will be noted, the defendants were first charged with putting on an immoral and indecent show, then with putting on an immoral and indecent scene or part of a show. At the conclusion of the trial by the court without a jury, the defendants, as already stated, were found guilty on the first count; the second count was dismissed.

The present convictions are, obviously, not to be disturbed because of the protection the law affords against double jeopardy. It may well be that, following a reversal of these judgments, appellants could successfully press the plea of once in jeopardy against a new trial because of the fact that they had gone to trial under the dismissed count.