In Re Lockett

Both petitioners are held, one under commitment after preliminary examination, and the other after such commitment and the filing of an information. Each is charged with an offense sought to be defined by section 288'a of the Penal Code by the use of the word “fellatio.” The sole question involved in each petition is whether or not the section is constitutional; therefore, we shall examine and consider both petitions together.

It is contended on behalf of both petitioners that the statute is unconstitutional because it is not in the English language, and because it is so indefinite and uncertain and unintelligible that it fails to inform a person charged thereunder with reasonable precision what acts are intended to be denounced by it and, therefore, denies “due process of law” to anyone prosecuted for its supposed violation.

The constitutionality of the same statute was considered by +his court in a proceeding entitled “In the Matter of the Application of William R. Soady for a Writ of Habeas Corpus,” a bare majority of the justices holding it to be constitutional. (56 Cal. Dec. 247.) Subsequently, the court of its own motion granted a rehearing, but as the petitioner had…

I concur in the judgment. The crime denounced by the statute is not defined but designated by words concededly not found in or constituting any part of the English language in which, as provided by section 24, article IV, of the constitution, all laws of the state must be published and in no other. Not only is it obnoxious to this provision of the constitution, but the words, no doubt intended by the legislature to apply to some one of the many forms of sexual perversion, are, even when reference is had to Latin Lexicons, of no determinate signification in determining the particular act which is penalized. This being true, the legislature might with equal propriety have used Chinese characters,' or, indeed, have coined new words for use in prescribing the act in place of those adopted, which, in the absence of definition, Avould have been just as intelligible to the citizen as the words used for the purpose of defining the offense.

I concur in the judgment. Further consideration has satisfied me that section 28'8a of the Penal Code is so vague and uncertain in its attempted statement of the acts declared to be felonies that it may not fairly be upheld as a valid statute. It must be conceded, I,think, that it is essential to the validity of a statute creating a criminal offense that it show in language capable of being understood by a person of ordinary intelligence what it is that is prohibited. This, it has been said, can only be done by the use of'terms or words of settled pneaning, or words which indicate offenses well known to and defined by the common law. (See, generally, 16 Corpus Juris, pp. 67, 68.)

Sloss, J., and Richards, J., pro tem., concurred.

Wilbur, J., dissented.