People v. Belous

SULLIVAN, J.,

Dissenting. — I concur in the views of Justice Burke. Reading the majority’s attack on-Penal Code section 274, one would think that the English language which has been the sensitive instrument of our system of law for over 500 years, has lost, by the mere passage of time, all capacity for clarity of expression. The majority strike down the statute solely because they find so vague and uncertain as .io offend constitutional standards of due process, a single brief clause of nine words of long and common usage: “unless the same is necessary to preserve her life. ’ ’ There is no mystique enveloping the statute and, as Justice Burke points out, the clause now challenged has stood the test of over a hundred years, and presumably of countless human incidents falling within its scope, apparently without evoking a single whimpering cry against it.

The mandate of the section is plain and clear, and simply means this: no one shall intentionally procure the miscarriage of a woman unless it is necessary to save her life. ‘ ‘ The criminal intent necessary to support a conviction of illegal abortion must show that it was performed for a purpose other than to save the abortee’s- life.” (People v. Abarbanel (1965) 239 Cal.App.2d 31, 34 [ 48 Cal.Rptr. 336 ].) I dare say that the average man in the street, confronted with this law, would have little trouble in extracting its sense (we hold him accountable to much more complicated enactments); and the doctor, with his professional training and expertise would have even less. We have said that “ [i]t is a cardinal rule to be applied to the interpretation of particular words, phrases, or clauses in a statute or a constitution that the entire substance of the instrument or of that portion thereof which has 'relation to the subject under review should be looked to in order to determine the scope and purpose of the particular *981 provision therein of which such words, phrases, or clauses form a part; and in order also to determine the particular intent of the framers of the instrument in that portion thereof wherein such words, phrases, or clauses appear.” (Wallace v. Payne (1925) 197 Cal. 539, 544 [ 241 P. 879 ].) In the ease before us, the challenged clause when so examined, is clear in meaning.

Yet the majority, by engaging in a process of elaborate and lavish analysis, transform that which is simple and lucid into something complex -and arcane. Actually the analysis is focused on only three" words: “necessary to preserve.” Their fair equivalent is “necessary to save” (see People v. Abarbanel, supra, 239 Cal.App.2d 31 , 3 4, People v. Ballard (1959) 167 Cal.App.2d 803, 814, 817 [ 335 P.2d 204 ]). Eather than evaluate these words in the light of “the entire substance” (see Wallace v. Payne, supra, 197 Cal. 539, 544 ), the majority resort to a dissection: “There is, of course, no standard definition of ‘necessary to preserve’ and taking the words separately-, no clear meaning emerges.” (Ante, pp. 960-961.) In support of this thesis, it is asserted that the word “necessary” does not have a “fixed meaning.” In general, few words do. 1 It is further insisted that the definition of “preserve” is “even less enlightening.” Accordingly, the majority discard its obvious meaning, that is, “save,” as used in the context “to save a life.” From such analysis, the opinion concludes “that the term ‘necessary to preserve’ in section 274 of the Penal Code is not susceptible of a construction that does not violate legislative intent and that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights.” (Ante, p. *982 960.) Actually the gist of this is that the three words ‘ 'necessary to preserve ’ ’ are so shrouded in darkness that the average man cannot detect what they mean although average men and men above average have had no trouble with them for a hundred years.

I cannot accept so tortured a conclusion, wrenched from a statute which has had its roots in the law’s historic solicitude for the priceless gift of life. The statute plainly prohibits an abortion unless.it is necessary to save the mother’s life. It strains reason to say that this crystal-clear exception to the law is “so vague that men of common intelligence must necessarily guess at its meaning. ...” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [ 83 L.Ed. 888, 890 , 59 S.Ct. 618 ], see ante, p. 960.) And it strains credulity to assume that this defendant, who under the evidence wilfully violated the statute, had to engage in any such guesswork with -respect to the law governing his conduct.

I would affirm the judgment.

McComb, J., concurred.

Respondent’s petition for a rehearing was denied October 1, 1969. Pierce, J. pro tern., * sat in place of Mosk, J., who deemed himself disqualified. McComb, J., Burke, J., and Sullivan, J., were of the opinion that the petition should be granted.

“Words, however, do not have absolute and constant referents. ‘A word is a symbol of thought but has no arbitrary andxfixed meaning like a symbol of algebra or chemistry, . . . ’ (Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 195 [ 5 Cal.Rptr. 553 , 353 R.2d 33].) The meaning of particular words or groups of words varies with the ‘. . . verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their users and their hearers or readers (not excluding judges). ... A word has no meaning apart from these factors; much less does it have an objective meaning, one true-meaning.’ (Corbin, The Interpretation of Words and the Parole Evidence Bule (1965) 50 Cornell L.Q. 161, 187.) ” (Pacific Gas & Elec. Co. v. G. W. Thomas Drayage Etc. Co. (1968) 69 Cal.2d 33, 38 [ 69 Cal.Rptr. 561 , 442 P.2d 641 ].)

“Words are used in an endless variety of contexts. Their meaning is not subsequently attached to them by the reader but is formulated by the writer and can only be found by interpretation in the light of all the circumstances that reveal the sense in which the writer used the words.’’ (Universal Sales Corp. v. California etc. Mfg. Co. (1942) 20 Cal.2d 751, 776 [ 128 P.2d 6651 . Traynor, J., concurring.)

Assigned by the Chairman of the Judicial Council.