In Re Bell

EDMONDS, J.,

Concurring. — Although I agree that the petitioners are not entitled to be released upon the writ of habeas corpus, the scope of the review, in my opinion, has been extended beyond that which the law allows.

The petitioners were convicted under a complaint which charged them both in the conjunctive and disjunctive with the violation of each section of the ordinance. They now contend that, since a conviction upon charges of peaceful picket- . ing would be an infringement of their constitutional rights, this court is not confined to the complaint and the judgment in considering the issues presented in this proceeding but *506 may look behind the record of conviction and examine the evidence adduced at the trial to determine' whether the conviction was for acts which are included within the unconstitutional portions of the ordinance. This argument requires some consideration of the nature and function of the writ of habeas corpus.

Generally speaking, the scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged. (Ex parte Parks, 93 U. S. 18 [ 23 L. Ed. 787 ]; Ex parte Siebold, 100 U. S. 371 [ 25 L. Ed. 717 ]; Knewel v. Egan, 268 U. S. 442 [ 45 S. Ct. 522 , 69 L. Ed. 1036 ]; Bowen v. Johnston, 306 U. S. 19 [ 59 S. Ct. 442 , 83 L. Ed. 455]; Ex parte Sternes, 77 Cal. 156 [ 19 Pac. 275 , 11 Am. St. Rep. 251 ] ; Ex parte Long, 114 Cal. 159 [ 45 Pac. 1057 ]; In re Carpenter, 36 Cal. App. (2d) 274 [ 97 Pac. (2d) 476 ].) The writ may not be employed as a vehicle for the correction of errors or irregularities committed within the exercise of an admitted jurisdiction. (Ex parte Clarke, 100 U. S. 399 [ 25 L. Ed. 715 ]; Ex parte Siebold, supra; Johnson v. Zerbst, 304 U. S. 458 [ 58 S. Ct. 1019 , 82 L. Ed. 1461 ]; 13 Cal. Jur. 218.) Nor may it be used as a device to test the sufficiency of the evidence to warrant the conviction of the petitioner, a question properly addressed to a reviewing court upon appeal. (Harlan v. McGourin, 218 U. S. 442 [ 31 S. Ct. 44 , 54 L. Ed. 1101 ]; In re Jacobs, 175 Cal. 661 [ 166 Pac. 801 ]; In re Williams, 183 Cal. 11 [ 190 Pac. 163 ]; In re Stevenson, 187 Cal. 773 [ 204 Pac. 216 ]; Ex parte Drew, 188 Cal. 717 [ 207 Pac. 249 ]; 13 Cal. Jur. 219.) These are traditional and fundamental principles from which there has been no departure, and although in recent times the concept of jurisdiction has been broadened upon habeas corpus, the question of the guilt or innocence of the petitioner is never a proper subject of inquiry.

Furthermore, a judgment challenged by a writ of habeas corpus carries with it a presumption of validity, and every reasonable intendment must be made in its favor. (Johnson v. Zerbst, supra, at p. 468 ; In re Pillsbury, 69 Cal. App. 784 [ 232 Pac. 725]; 15 Cal. Jur. 64.) The proceeding is subject to the rules applicable to collateral assault upon judgments generally. (In re Stevenson, supra; Ex parte Stephen, 114 Cal. 278 [ 46 Pac. 86 ].) The presumption of validity, however, is rebuttable when the jurisdiction of the convicting *507 court is called into question, and in pursuing its inquiry into the challenged jurisdiction, the petitioned court is not confined to the face of the judgment of conviction but may review the entire proceeding below, including an examination not only of the facts disclosed by the record but of any additional facts, outside of, but not inconsistent with, the record. (Re Nielsen, 131 U. S. 176 [ 9 S. Ct. 672 , 33 L. Ed. 118 ]; Re Cuddy, 131 U. S. 280 [ 9 S. Ct. 703 , 33 L. Ed. 154 ]; In re Mayfield, 141 U. S. 107 [ 11 S. Ct. 939 , 35 L. Ed. 635 ].) However, as to all matters not affecting the jurisdiction of the court, the presumption of regularity attaching to the judgment of conviction is conclusive and unrebuttable, and any inquiry beyond the face of the judgment is foreclosed. To hold otherwise, would permit the writ of habeas corpus to be used as a means of correcting error or of testing the sufficiency of the evidence. Accordingly, the presumption that petitioners were convicted under the constitutional portions of the picketing ordinance must be deemed conclusive and an examination of the evidence upon which that conviction was had is improper unless the jurisdiction of the justice’s court has been adequately challenged by the allegations of the petition.

As the courts have defined jurisdiction in recent years, it includes the right to hear and determine concerning the offense charged and the authority of the court to act in a given manner over the person of the accused. (Fortenbury v. Superior Court, 16 Cal. (2d) 405 [ 106 Pac. (2d) 411 ].) If during the course of a criminal prosecution the accused is deprived of certain fundamental procedural rights guaranteed by the Fourteenth Amendment to the Constitution of the United States, a judgment of conviction subsequently entered is invalid for lack of jurisdiction. (Johnson v. Zerbst, supra; Smith v. O’Grady, 312 U. S. 369 [ 61 S. Ct. 572 , 85 L. Ed. 859 ]; In re Connor, 15 Cal. (2d) 161 [ 99 Pac. (2d) 248 ] [denial of the right to counsel]; Frank v. Mangum, 237 U. S. 309 [ 35 S. Ct. 582 , 59 L. Ed. 969 ]; Moore v. Dempsey, 261 U. S. 86 [ 43 S. Ct. 265 , 67 L. Ed. 543 ] [trial dominated by mob violence]; Tumey v. Ohio, 273 U. S. 510 [ 47 S. Ct. 437 , 71 L. Ed. 749 ] [denial of the right to an impartial judge].) The remedy of habeas corpus is available to a petitioner asserting a lack of jurisdiction in any of the respects above set forth, and the petitioned court may look *508 behind the record of conviction to test the questioned jurisdiction. As stated in one of these cases: “A court’s jurisdiction at the beginning of trial may be lost ‘in the course of the proceedings’ due to failure to complete the court — as the Sixth Amendment requires — by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. ’’ (Johnson v. Zerbst, supra.)

But when one is being prosecuted for the commission of acts which are charged to have been committed with force and violence and also within the limits of peaceful persuasion, the court does not lose jurisdiction when it determines from the evidence that they fall within the first category and not the second. That is the situation of the petitioners in the present case. The justice’s court had jurisdiction over the persons of those charged with violating the ordinance. The offense of committing acts of violence in connection with picketing is one which the court had the power to try, and a conviction for that offense was within the authority of the court to enter. The petitioners do not claim that they were not accorded a fair trial or that they were denied any rights guaranteed to them by the federal Constitution. And although the petitioner for a writ of habeas corpus is entitled to his release if the complaint upon which he was convicted does not charge a public offense (Ex parte McNulty, 77 Cal. 164 [ 19 Pac. 237 , 11 Am. St. Rep. 257 ]; Ex parte Williams, 121 Cal. 328 [ 53 Pac. 706 ]), if it attempts, as here, to state an offense of which the court has jurisdiction, the question whether the facts alleged show the commission of that offense will not be inquired into. (In re Leach, 215 Cal. 536 [ 12 Pac. (2d) 3 ]; In re Wood, 194 Cal. 49 [ 227 Pac. 908 ].) When one has been convicted under a statute or ordinance constitutional in its entirety, the question whether the evidence at the trial is sufficient to bring the case within the ordinance and establish a breach of its provisions, is a question, the improper determination of which, constitutes error only and is not subject to review on habeas corpus. (Ex parte Long, 114 Cal. 159 [ 45 Pac. 1057 ]; In re Kelso, 147 Cal. 609 [ 82 Pac. 241 , 109 Am. St. Rep. 178 , 2 L. R. A. (N. S.) 796]; In re Horr, 177 Cal. 721 [ 171 Pac. 801 ].) This principle is applicable even though it be contended there is a total lack of evidence to support the conviction. (In re Cutler, supra.) No different *509 result should obtain when one has been convicted under a severable ordinance, constitutional in part.

In Herndon v. Lowry, 301 U. S. 242 [ 57 S. Ct. 732 , 81 L. Ed. 1066 ], the facts were quite different from those now before this court. There, the defendant was convicted of the crime of insurrection as defined in a statute of Georgia. He appealed from a judgment of the state Supreme Court refusing him a discharge upon habeas corpus, contending that the statute was too vague and indefinite to provide a sufficiently ascertainable standard of guilt. The Supreme Court of the United States upheld this contention and characterized the entire statute as uncertain in that it was susceptible of a construction penalizing innocent as well as criminal conduct. In order to determine whether the state court had made an unconstitutional construction and application of the statute, the Supreme Court was compelled to examine the record and to ascertain the specific conduct which was claimed to be unlawful under the statute. This record, the court concluded, showed the commission of lawful acts only, and it held that the statute had been unconstitutionally construed and applied.

If, upon examining the face of a criminal statute, the nature of the conduct which is made unlawful appears to be wholly uncertain, the court upon habeas corpus must of necessity review the evidence concerning the acts attributed to the defendant to determine whether the statute was unconstitutionally applied. That rule is not applicable, however, where, as here, the statute prohibits acts of violence in connection with picketing, which, unquestionably, may be made unlawful. The sufficiency of the complaint to charge such acts was a question which the petitioners might properly present upon appeal, together with the point that the evidence showed no acts of violence. But their appeal has been determined adversely to them. That determination constitutes a final adjudication upon the issues of fact which, it must be conclusively presumed, was a conviction for acts of violence.

This conclusion is in accordance with long established principles. For example, in the case of Ex parte Morrison, 88 Cal. 112 [ 25 Pac. 1064 ], petitioner challenged the validity of a judgment convicting him of the crime of vagrancy as defined in section 647 of the Penal Code. He attacked the first clause of this section as unconstitutional. Although the judgment was regular on its face, it did not appear there *510 from under which clause of section 647 the conviction was had. In discharging the writ, the court declared, “we cannot assume, for the purpose of passing on this question, or of discharging the prisoner, that this is the particular clause under which the judgment of conviction was had.” And in In re Dal Porte, 198 Cal. 216 [ 244 Pac. 355 ], petitioner was charged and convicted under two counts, one of which stated an offense beyond the jurisdiction of the court to try. As the finding of guilt was general, it was impossible to ascertain whether the conviction was based upon either or both counts. Admitting that the judgment was erroneous and subject to correction on appeal, the court nevertheless declared: “We are not prepared to say, however, that petitioner is entitled in this proceeding to any relief from said judgment on account of its being based upon a defective count of the complaint. As we have already seen, the charge set forth in the second count of said complaint was one within the jurisdiction of said police court, and the fact that the offense charged in the first count of said complaint was one over which said police court did not have jurisdiction would not be sufficient to oust the court of jurisdiction of the offense over which it had full and complete jurisdiction.”

But I agree that if the records of the trials which resulted in the petitioners’ conviction may be examined for the purpose of determining whether the petitioners committed acts of violence and physical intimidation, there is substantial evidence to support the judgments which are attacked in this proceeding. For although labor may present its grievances to the public, the obstruction of access to an employer’s place of business by such number of persons as to require his employees who desire to work to run the gauntlet under threats of physical harm is not protected by the constitutional guaranties.

Many years ago, this court held that an intentional interference with the relations of an employer and his employees is not tortious if the object sought to be attained has reasonable relevance to labor conditions and peaceful means are used to accomplish it. (Parkinson Co. v. Building Trades' Council, 154 Cal. 581 [ 98 Pac. 1027 , 16 Ann. Cas. 1165, 21 L. R. A. (N. S.) 550].) That principle was recently restated and applied in holding “that workmen may associate together and exert various forms of economic pressure upon *511 employers, provided they act peaceably and honestly. ’ ’ However, the court laid particular emphasis upon the requirement that labor’s acts must be peaceful if they are to come within the protection of the law. Fully recognizing “that the right to picket peacefully and truthfully is one of organized labor’s lawful means of advertising its grievances to the public, and as such is guaranteed by the Constitution as an incident of freedom of speech,” it also added: “But the law clearly requires that concerted action by union workers must be peaceful. Acts of violence or ‘acts amounting to physical intimidation’ will be enjoined.” (McKay v. Retail Auto S. L. Union No. 1067, 16 Cal. (2d) 311 [ 106 Pac. (2d) 373 ].)

The testimony which is referred to in the opinion of my associates, and other evidence which is shown by the record, fully justifies a conclusion that the picketing, carried on, in part, under cover of darkness and with a show of force toward employees of the Earl Fruit Co. who desired to continue their employment entirely out of proportion to any peaceful purpose, was accompanied by such violence, or threats of violence, as to constitute unlawful means. To say that it comes within the bounds of peaceful picketing is to ignore the realities of the situation.

When pickets patrol the public street which is the approach to their employer’s premises and either their number or their conduct is such as to constitute intimidation and put employees or others in fear of bodily harm, they are guilty of unlawful acts. Such picketing goes far beyond that which has been recognized by the courts as a reasonable, exercise of the right to tell the facts of a labor dispute and to persuade employees, by peaceful means, to leave their work. The courts have generally recognized that persuasion in the presence of a large number of persons is not peaceful persuasion, and in one of its decisions, the Supreme Court of the United States said that it is the proper function of a court of equity “to prevent the inevitable intimidation of . . . groups of pickets, but to allow missionaries. ... In going to and from work, men have a right to as free passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege.” (American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 [ 42 S. Ct. 72 , 66 L. Ed. 189 ].)

In the very recent case of Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, 312 U. S. 287 *512 [ 61 S. Ct. 552 , 85 L. Ed. 836 , 132 A. L. R. 1200], (rehearing denied, 312 U. S. 715 [ 61 S. Ct. 803 , 85 L. Ed. 1145 ]), the same court laid down the requirement that, to be lawful, picketing must be peaceful and may not have a background of violence. “Peaceful picketing,’’ said the court, “is the workingman’s means of communication. It must never be forgotten, however, that the Bill of Bights was the child of the Enlightenment. Back of the guarantee of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in ohder to avert force and explosions due to restrictions upon rational modes of communication that the guarantee of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution. ’ ’

The petitioners in that case, as in the one now before this court, relied upon the decision of Thornhill v. Alabama, 310 U. S. 88, 105 [ 60 S. Ct. 736 , 84 L. Ed. 1093 ]. But, as Mr. Justice Frankfurter pointed out, there was no “entanglement with violence” in either the Thornhill case or in Carlson v. California, 310 U. S. 106 [ 60 S. Ct. 746 , 84 L. Ed. 1104 ], where the court declared: “The power and duty of the State to take adequate steps to preserve the peace and protect the privacy, the lives, and the property of its residents cannot be doubted.” Concerning the former case, he said that the court expressly excluded a labor dispute involving violence from the scope of its decision in these Words: “We are not now concerned with picketing en masse or otherwise conducted which might occasion such imminent and aggravated danger ... as to justify a statute narrowly drawn to cover the precise situation giving rise to the danger.” The Yuba County ordinance, in so far as its valid severable provisions are concerned, is exactly such a statute.

Curtis, J., concurred.