The opinion
McCOMB, J.
I dissent. In my opinion, this is the sole question necessary to be decided: Does section 647, subdivision 4, of the Penal Code, * as applied to the facts of this case, make loitering a crime f
*314 No. The word “loitering” has no sinister meaning and implies no wrongdoing or misconduct on the part of one engaged in such an act. (Territory of Hawaii v. Anduha, 48 F.2d 171, 173 [2]; In re Bell, 19 Cal.2d 488, 497 [ 122 P.2d 22 ]; cf. Matter of Williams, 158 Cal. 550 [ 111 P. 1035 ]; In re McCue, 7 Cal.App. 765, 766 [ 96 P. 110 ].)
In Territory of Hawaii v. Anduha, supra, the Circuit Court of Appeals for the Ninth Circuit, in quoting with approval from the opinion of the Supreme Court of the Territory of Hawaii affirming a judgment declaring a statute using the word “loiter” as unconstitutional and void, said at page 172: “All loitering, loafing or idling on the streets and highways of a city, even though habitual, is not necessarily detrimental to the public welfare nor is it under all circumstances an interference with travel upon them. It may be and often is entirely innocuous. The statute draws no distinction between conduct that is calculated to harm and that which is essentially innocent.
“Visitors, lured by the fame of our climate and of our natural scenery and the hospitality of our people, come here for recreation and pleasure. Many of them, having no other occupation, habitually but harmlessly idle or loiter upon our streets and highways. In their pursuit of happiness, which is a guaranteed right, they loiter before shop windows, pause to enjoy the changing colors of the ocean and to talk with friends. It would be shocking to say that so long as they are innocent of any wrong and conduct themselves with due regard to the rights of others and the good order of the community the legislature has the constitutional authority to declare them misdemeanants and subject them to arrest and imprisonment. Also, there are persons who, taking advantage of the leisure they have on the Sabbath, habitually go for long hikes along the public highways. When weariness overtakes them they stop for rest. Attracted by the beauties of the landscape they loiter and idle for as long as they choose. The free use of the highway by others is not impeded and the public peace is not disturbed.”
*315 It is settled that a statute creating a crime must define it so clearly and definitely that all may know what act or omission constitutes a violation of the law. The statute must so define the offense that a person of ordinary understanding may know therefrom when he is violating its provisions. (In re Newbern, 53 Cal.2d 786, 792 [9] [ 3 Cal.Rptr. 364 , 350 P.2d 116 ] ; In re Harder, 9 Cal.App.2d 153, 155 [2] [ 49 P.2d 304 ].)
Applying the foregoing rules to the facts of the present case, it is clear that since the word “loitering” has no sinister meaning and implies no wrongdoing or misconduct, petitioner did not commit any crime under the provisions of section 647, subdivision 4, of the Penal Code.
Any statement to the contrary in Phillips v. Municipal Court, 24 Cal.App.2d 453 [ 75 P.2d 548 ], should be disapproved.
I would order petitioner discharged from custody.
Seetion 647 of the Penal Code reads, in part, as follows: “. . . 4. Every person known to be a pickpocket, thief, burglar or confidence operator, either by his own confession, or by his having been convicted of any *314 of such offenses, and having no visible or lawful means of support, when found loitering around any steamboat landing, railroad depot, banking institution, broker’s office, place of amusement, auction room, store, shop or crowded thoroughfare, ear, or omnibus, or any public gathering or assembly; . .. .
“Is a vagrant, and is punishable by a fine of not exceeding five hundred dollars ($500), or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.”