Cohen

This is an appeal from an order denying an alternative writ of prohibition.

Petitioner was charged with violating section 311.2 of the Penal Code. 1 The complaint charged, in pertinent part, that defendant “did wilfully, unlawfully and knowingly in this state prepare and exhibit and offer to exhibit obscene matter.” The offense was charged in the language of the statute. The obscene matter was not identified in the complaint. Defendant filed a demurrer to the complaint. It was overruled. Defendant then petitioned for an alternative writ of prohibition. His petition was denied. Hence this appeal.

In seeking a reversal, petitioner, basically, makes three arguments: (1) That due process requires that the specific matter alleged to be obscene must be pleaded, (2) that Penal Code section 311.2 on its face and as applied in the complaint at bench is void because it is too vague, ambiguous and uncertain to form the basis of a valid criminal charge and (3) that he will be unable to establish former jeopardy in the event of his later prosecution for the same offense.

It will be helpful to review, at the outset, the legislative enactments dealing with pleading in criminal cases. People…

I concur wholeheartedly with everything in the majority opinion except for one matter; unfortunately that partial disagreement necessitates, in my judgment, a reversal of the action of the trial court.

My dissent is directed to the holding that the complaint need not identify even the class or kind of “material" with which defendant is alleged to have dealt. Section 311 subdivision (a) is a part of Chapter 7.5 of the Penal Code, added by Chapter 2147 of the 1961 Statutes. The first section of that chapter, section 311, provides a set of definitions of the terms used in the subsequent sections, including section 311 subdivision (a). It follows that the allegation in the complaint that defendant dealt with “material” means that he dealt with material as that word is defined in section 311, subdivision (b). But when we read that subdivision into the complaint, we find that defendant is charged with conduct with reference to an obscene book, or magazine, or newspaper, or other printed or written material, or a picture, or a drawing or a photograph, or a motion picture, etc., etc. But it is a well settled rule of criminal pleading that, although the several alternatives set out in a…

This is an appeal from an order denying an alternative writ of prohibition.

Petitioner was charged with violating section 311.2 of the Penal Code. [fn. 1] The complaint charged, in pertinent part, that defendant "did wilfully, unlawfully and knowingly in this state prepare and exhibit and offer to exhibit obscene matter." The offense was charged in the language of the statute. The obscene matter was not identified in the complaint. Defendant filed a demurrer to the complaint. It was overruled. Defendant then petitioned for an alternative writ of prohibition. His petition was denied. Hence this appeal.

In seeking a reversal, petitioner, basically, makes three arguments: (1) That due process requires that the specific matter alleged to be obscene must be pleaded, (2) that Penal Code section 311.2 on its face and as applied in the complaint at bench is void because it is too vague, ambiguous and uncertain to form the basis of a valid criminal charge and (3) that he will be unable to establish former jeopardy in the event of his later prosecution for the same offense.

It will be helpful to review, at the outset, the legislative enactments dealing with pleading in…