Mier v. Municipal Court

FORD, J. This is an appeal from a judgment granting a peremptory writ of prohibition whereby the Municipal Court for the Culver Judicial District was commanded to desist from further proceedings with respect to certain counts of amended [471]complaints filed in pending criminal prosecutions. The counts were those which were based on alleged violations of an ordinance of Culver City. A writ was denied with respect to other counts in which violations of section 311 of the Penal Code of the State of California were charged.

The petitioners were the defendants in prosecutions pending in the municipal court. Petitioner California Magazines, Inc., was engaged in the business of the wholesale distribution of books, magazines, pamphlets and other publications. The other petitioners were owners and operators of certain liquor stores in Culver City wherein books, magazines and pamphlets were sold. The publication involved in a particular count of an amended complaint filed in the municipal court was described by name. Examples of such names are: “American Nudist,” “Sunbathers Calendar,” “Naturist,” and “Nudist Calendar. ’ ’

The offenses charged in the prosecutions instituted in the municipal court were alleged to have occurred on or about November 3, 1960. Except in the case of California Magazines, Inc., each amended complaint contained three counts with respect to conduct relating to a specific publication.1 One of such counts charged a violation of section 2 of article V of Ordinance No. CS-275 in that the named defendant “did willfully and unlawfully exhibit, post, display and advertise on an advertising device, a picture representing a human being in a nude state and immoral, indecent, lewd, lascivious and unlawful act, suggestion, purpose, sign picture, illustration and delineation in a manner such as to offend public morals and decency, to wit: . . . [the particular publication].” The provisions of section 2 of article Y of the ordinance are set forth in the footnote.2

[472]In another count it was alleged that the named defendant had violated section 3 of article V of the ordinance in that such defendant “did willfully and unlawfully sell, offer for sale, advertise for sale, attempt to sell, exhibit, keep in his possession with intent to sell and give away a magazine which, read as a whole, is obscene in nature, to wit: . . . [the particular publication]. ’ ’ The provisions of section 3 of article V of the ordinance are set forth in the footnote.3