The opinion
McCOMB, J., Dissenting.
I dissent. These are appeals by defendants from (1) a judgment of guilty of conspiracy to violate sections 245, 375, subdivision 4, and 518 of the Penal Code, and (2) five judgments of guilty of violating section 375, subdivision 4, of the Penal Code, after trial before a jury. There are also appeals from the orders denying the motions of defendants for a new trial.
Viewing the evidence most favorably to the People (respondent), it appears that during the last half of 1937 and the year 1938 defendants entered into a conspiracy to force the various cleaning and dyeing establishments in the Los Angeles area to enter into agreements with the labor union known as the International Association of Cleaning and Dye House, Local No. 5, and that pursuant to this conspiracy numerous heinous, barbaric and atrocious acts were perpetrated in order to force the owners of cleaning and dyeing plants to enter into contracts with the association. For example, rocks were thrown through the windows of establishments that did not accede to the demands of the conspirators, stink bombs were thrown into the places of business of non-cooperating cleaners, shots were fired into establishments of non-cooperating cleaning and dyeing operators and numerous other acts of a criminal nature were committed which would have dimmed the fame of the wicked and villainous vandals of the dark ages. It would serve no useful purpose to enumerate them in this opinion. The testimony upon which the foregoing facts are predicated was principally based on circumstantial evidence or came from the mouths of admitted co-conspirators. As is usually the case in such a trial, there was a sharp conflict in the evidence, the defendants denying any participation in the crimes charged.
Numerous errors are urged by defendants for reversal of the judgments against them. However, it is only necessary to decide the following questions:
First: Is section 375, subdivision 4, of the Penal Code constitutionalf
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Second: Assuming that section 375, subdivision 4, of the Penal Code is unconstitutional, can the conviction of defendants upon count I of the indictment as amended be sustained, in view of the fact that it charged a conspiracy upon the part of defendants to violate not only section 375, subdivision 4, of the Penal Code, but also sections 245 and 518 of the same code, and considering also that there was substantial evidence (which, however, was contradicted) received during the trial to support a finding by the jury that defendants violated each or all of the Penal Code sections just mentioned?
The first question should in my opinion be answered in the negative and is governed by this principle of law: That a citizen pursuant to section 1 of the Fourteenth Amendment of the Constitution of the United States and section 1, article I of the Constitution of the State of California, may not be deprived of the right to the enjoyment and use of his property by a statute which is unreasonable and oppressive, and a statute depriving a citizen of his property is unreasonable and oppressive when it has no reasonable relation to the police power. (In re McCapes, 157 Cal. 26, 27 [ 106 Pac. 229 ].)
Section 375, subdivision 4, of the Penal Code reads thus:
“Use of sub stance likely to produce serious illness or permanent injury: Use of tear or mustard gas, acid or explosives: Punishment. Any person who, in violating any of the provisions of subdivision (1) of this section, willfully employs or uses any liquid, gaseous or solid substance which may produce serious illness or permanent injury through being vaporized or otherwise disbursed in the air or who, in violating any of the provisions of subdivision (1) of this section, willfully employs or uses any tear gas, mustard gas or any of the combinations or compounds thereof, or willfully employs or uses acid or explosives, shall be guilty of a felony and shall be punished by imprisonment in the State prison for not less than one year and not more than five years.”
Subdivision (1) of section 375 of the Penal Code, referred to in subdivision (4) of the same section, reads thus:
“It shall be unlawful to throw, drop, pour, deposit, release, discharge or expose, or to attempt to throw, drop, pour, deposit, release, discharge or expose in, upon or about any theater, restaurant, place of business, place of amusement or *107 any place of public assemblage, any liquid, gaseous or solid substance or matter of any kind which is injurious to person or property, or is nauseous, sickening, irritating or offensive to any of the senses.”
From a reading of subdivisions (1) and (4) of section 375 of the Penal Code it appears that the legislature has attempted to make it unlawful for a citizen to drop, pour, deposit or expose in any place of business any liquid, gaseous or solid substance or matter which is injurious to person or property or is nauseous, sickening, irritating or offensive to any of the senses.
It is evident that if the wording of this statute is constitutional it would be unlawful for a druggist to expose in his apothecary shop asafetida, carbolic acid, bichloride of mercury, nitric acid or numerous other acids and substances which are daily employed for the protection of the life and health of mankind. Therefore, the statute is unreasonable and oppressive and falls within the purview of the rule of law above stated as being violative of section 1 of the Fourteenth Amendment of the Constitution of the United States and of section 1, article I of the Constitution of this state, and it is therefore unconstitutional. (In re McCapes, supra.)
In the McCapes case our Supreme Court had before it the question of the constitutionality of subdivision 3 of section 384 of the Penal Code, which made it a misdemeanor for any person willfully or negligently to build “a fire on his own land for the purpose of burning brush, stumps, logs, rubbish, fallen timber, fallows, grass or any other thing whatsoever, . . . provided, that any state or district fire warden may in his reasonable discretion give a written permit to any person desiring to build fires”. Mr. Justice Henshaw, speaking for the court, said at page 27:
“It is to be noted that the act is designed to prevent the destruction of property, and particularly of forests, by the careless setting of fires. In its purview and purpose, therefore, the act is within the police power of the state. No one at this day can be unaware of the great havoc wrought by forest fires, and indeed, in states such as this, which undergo long periods of drouth, of the loss which results from fires sweeping over the farming lands and destroying the crops. The purpose of the law being for the general good of the *108 state, to prevent the destruction of property by fires carelessly set and allowed to escape control, not only brings the act strictly within the police power, but the purpose must commend the act to every court. Nevertheless, in the accomplishment of that purpose, it is quite plain that the legislature has transgressed all reasonable bounds. It is an exemplification of what this court said in Ex parte Jentzsch, 112 Cal. 468 [ 44 Pac. 803 , 32 L. R. A. 664] : ‘So, while the police power is one whose proper use makes most potently for good, in its undefined scope and inordinate exercise lurks no small danger to the republic. For the difficulty which is experienced in defining its just limits and bounds affords a temptation to the legislature to encroach upon the rights of citizens with experimental laws, none the less dangerous because well meant. ’
“ . . . Such a law upon the face of it is an unreasonable interference with the rights of property. But if it be said that notwithstanding the language, the law will be given a construction which will avoid hardship, it must be answered that by its terms it makes it a crime for any man to light a fire on his land for the purpose of burning ‘ anything whatsoever, ’ and declares the person who does so a criminal, regardless of the fact that the fire was carefully set and guarded and regardless of the fact that no injury to anybody resulted from the setting. In other words, every person so setting a fire would be guilty of a crime, and the question whether he should be punished or not would rest largely in the friendship or hostility of his neighbors, or of the informer who by this law receives one-half of the fines upon conviction. The facts in the case at bar may be referred to in illustration of the working of such a law. The petitioner was digging a well upon his own land. It became necessary for him to blast rock. Fearful lest a burning fuse hurled by the exploding blast might set fire to the grass in the vicinage he prudently and carefully burned off this dry grass without causing the slightest damage to any property. He built this fire, however, without obtaining permission from a district fire-warden. Indeed, at the time that he set it there was no district fire warden. Subsequently the county of Madera caused the appointment of a fire warden, and this fire warden procured the arrest of the defendant for a violation of the law. This brief *109 statement will better serve to illustrate the unreasonableness of the law than would many pages of exposition.”
To the same effect see San Diego T. Assn. v. East San Diego, 186 Cal. 252, 253 [ 200 Pac. 393 , 17 A. L. R. 513]; In re Farb, 178 Cal. 592, 593 [ 174 Pac. 320 , 3 A. L. R. 301]; In re Kelso, 147 Cal. 609, 610 [ 82 Pac. 241 , 109 Am. St. Rep. 178 , 2 L. R. A. (N. S.) 796]; In re Hall, 50 Cal. App. 786, 787 [ 195 Pac. 975 ].
It is therefore evident that the conviction of defendants on counts VI to X of the indictment charging violations of section 375, subdivision (4) of the Penal Code should be reversed.
The second question should also be answered in the negative. Count I of the amended indictment read in part as follows:
“The Grand Jury of the County of Los Angeles, State of California, hereby accuses LEWIS BLACK, SAMUEL BLUMENBERG, ROBERT COWAN, HARRY DANSKY, JOSEPH M. INGLER, CAL T. FISH, BEN* KELLER, ALFRED LUSHING, JAMES MEYERS, FRED MOODY, THOMAS PORTER, GEORGE RUBEN, FRANK D. SCO-VEL and BEN TORI Cl alias BEN TORTORICI, of a felony, to-wit, the crime of CONSPIRACY TO VIOLATE SECTION 245, Penal Code of CALIFORNIA, SECTION 518, PENAL CODE OF CALIFORNIA, and SECTION 375, SUBDIVISION 4, PENAL CODE OF CALIFORNIA, in that, within three years prior to the finding of this amended indictment and continuously thereafter, in the County of Los Angeles, State of California, the above named defendants did willfully, unlawfully and feloniously conspire, combine, confederate and agree together, and with divers other persons whose true names are to the Grand Jury unknown, to commit assaults upon the person of other persons by means of force likely to produce great bodily injury, and further to obtain property of other persons not these conspirators, with the consent of said other persons, which was induced by the wrongful use of force and fear.
“And further to willfully throw, drop, pour, deposit, release, discharge, and expose in, upon and about, places of business, said places of business not being the places of business of these conspirators, a liquid substance and matter containing acid, which said substance and matter is and was *110 injurious to person and property and which was and is irritating and offensive to the senses, and which substance containing acid, as aforesaid, was willfully and knowingly employed and used by the aforesaid defendants.”
In the balance of the count nineteen specific overt acts were alleged.
As stated above, the evidence in support of the conviction under count I of the indictment was highly conflicting, circumstantial, and came principally from the mouths of admitted accomplices. The jury might have believed the evidence tending to find defendants guilty of violating section, 375, subdivision 4 of the Penal Code and disbelieved the evidence tending to show defendants guilty of violating sections 245 and 518 of the Penal Code. If this were true, defendants would not be guilty of any offense under count I of the indictment, and, since I am unable to determine which evidence the jury believed (since count I of the indictment charged a violation of all three of the sections of the Penal Code, including the unconstitutional section), the judgments of guilty on count I should in my opinion be reversed. Whether guilty or innocent, the defendants were entitled to have their case tried according to the established rules of law; and though the trial in the instant case may have resulted in justice to the particular defendants, yet such justice is unjust and dangerous to the community. In a recent case Mr. Justice White has pungently stated the principle thus: ‘ ‘ The doctrine that respect for the law cannot be inspired by withholding the protection of the law is one which recognizes no exceptions” (People v. Braun, 31 Cal. App. (2d) 593, 603 [ 88 Pac. (2d) 728 ]).
For the foregoing reasons the judgments in my opinion should be reversed and new trials ordered.
A petition for a rehearing was denied June 12, 1941. McComb, J., voted for a rehearing.
Appellants’ petition for a hearing by the Supreme Court was denied June 26, 1941.