People v. Scott

McLUCAS, P. J. Defendants were convicted of vagrancy, as being dissolute persons, and appeal from the judgment. According to the undisputed evidence, defendants presented dances on a stage before several hundred men assembled at a smoker. Upon the first appearance of defendants, they were partially clothed in dancing costumes, and thereafter each of the defendants in turn came back upon the stage and presented dances before the assembled men, and each of defendants upon the last occasion appeared and danced in the nude for a period not exceeding five minutes. There was no evidence offered that defendants had danced in the nude on any other occasion.

Appellants contend that the evidence was insufficient to support the conviction of vagrancy, for the reason that a single or specific act is not sufficient to constitute the actor a vagrant under subdivision 5 of section 647 of the Penal Code, which defines “every idle, or lewd, or dissolute person, or associate of known thieves” as being a vagrant. “Vagrancy at common law was defined as the [780]wandering or going about from place to place by an idle person who has no lawful visible means of support, and who subsists on charity and does not work for a living though able so to do, but it has not infrequently been held by many courts that the statutes, in both England and America, have so much and so frequently dealt with the subject of vagrancy, that the common law on the subject has become unimportant. Where the legislature of a state has taken upon itself the regulation of vagrants by statute, the words therein must bear the interpretation thereby made or intended, and owing to the different wording of such statutes it is impracticable to lay down a definition that will include all who are vagrants, or to give the description of all those who come within this class in the various states.” (8 R. C. L., p. 339.)

It is generally conceded that, within certain broad limitations, the legislature may by statute define vagrancy and impose punishment for the offense. (Ex parte Hudgins, 86 W. Va. 526 [9 A. L. R. 1361, 103 S. E. 327].) In In re McCue, 7 Cal. App., it is said (p. 766 [96 Pac. 110, 111]): “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. 933].) 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