The opinion
PETERS, J.
I dissent for the reasons stated in the dissenting opinion of Mr. Justice McComb, and for certain additional reasons.
The statute here involved (Pen. Code, § 647, subd. 4), purports to punish a person simply because he has been convicted, some indefinite time in the past, of certain enumerated crimes if he is found “loitering” in certain public places. The statute does not require that any type of suspicious or sinister conduct be connected with the loitering. Thus the statute purports to punish a person as a criminal simply because of his status, an early common-law concept that has long been repudiated in all enlightened jurisdictions.
The majority, in order to avoid this obvious defect in the statute, define “loitering” as “lingering in the designated places for the purpose of committing a crime as opportunity may be discovered.” No case is cited in support of this tortured interpretation. If the statute contained this limitation it might be valid. But the statute does not so provide. The word “loitering” has no such sinister meaning, as the cases cited by Mr. Justice McComb in his dissent, demonstrate. The verb “loiter” is defined in Webster’s New International Dictionary (2d ed.) as “To be slow in moving; delay; linger; saunter; lag behind.” Those are its obvious meanings. No suspicious, sinister, or criminal conduct is implied in such definitions. The majority, in an attempt to save the statute, have simply rewritten it by inserting the element that the loitering must be so connected with other conduct that it indi *316 cates that the loiterer is lingering in the prohibited area for the purpose of committing a crime. No such element is to be found in the statute, nor is it to be found in the charge made against petitioner. Certainly, a person who has had a prior conviction should not be punished simply because he is slow in moving, or delays, or lingers, or saunters, or lags behind in public places. Certainly it is not a reasonable inference that such a person is contemplating committing a crime. The majority opinion necessarily is predicated upon the concept that “once a criminal always a criminal.” If a person has been once convicted of one of the enumerated offenses and is observed lingering in a public place he is, according to the majority, necessarily contemplating the commission of a crime. Even if the mere contemplation of a crime could itself be a crime, which it cannot, such an inference is unsound and unrealistic. It disregards the fact that the ex-criminal has already paid his full debt to society for his past offense, and presumably has learned his lesson. It brushes aside the reasonable probability of rehabilitation. It brands an ex-criminal as a present criminal for the balance of his life if he ever sits down or stands, or even walks slowly, in a public place.
It is certainly true, as stated by the majority, that all presumptions and intendments favor the validity of statutes, and that the courts should so interpret statutes so as to make them, if possible, reasonable and workable. But, under the guise of interpretation, the court has no power to rewrite the law by inserting therein a provision not found in the enactment, or to fill a gap in a statute by adding a provision that the Legislature, by oversight or design, omitted. (Code Civ. Proc., § 1858; see many eases collected and commented upon in 45 Cal.Jur.2d, p. 611, § 97 et seq.) That is precisely what the majority have done in the present ease.
For these reasons the statute in my opinion is invalid, and the petitioner should be discharged from custody.
McComb, J., concurred.