It is in the nature of such a sweeping prohibition that a-judge or juror who is looking for objective, standards is faced with insurmount able difficulties, while arbitrary tendencies are fostered by unlimited discretion. The concept of lewdness and dissoluteness is an omnibus wide enough to accommodate almost any violation of criminal law, and maybe of morals and religion as well it makes the entire penal code superfluous except for the degree or punishment and procedural matters. The judge or juror failing to find objective standards to guide him through the immensity of socially disapproved conduct creates his own standards. The judicial function became legislative in each instance. And while the intellect of the judge or juror is so occupied, a strong appeal to his emotions is made by the highly charged words connoting sexuality to put the stamp of approb. rium on a socially harmless but dif. ferent pattern.

The same lack of objectivity marks the singular defense of reform which is recognized in this crime and which is as vague as the crime of vagrancy itself. Again there are only individual standards or idio syncrasies to judge when a person has abandoned lewdness and em. braced decency. Until he reforms, the defendent is in constant jeopardy of being arrested, tried and convicted innumerable times for the same offense. Also, the customary distinctions between acts of prepara. tion, attempt and completed ime lost their importance in the concept of dissoluteness.

One may wonder about the sig nificance of a statute that first de clares a "lewd" person to be a vag. rant before it proceeds. to give the penalty of the crime. Certainly the explanation that this type of offense

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is usually committed by persons roam over the country is not true under present conditions if it was ever true in the past. Immoral acts are committed by the static as well as by the nomads, 'and such acts may be punished under the doctrine of Re McCue regardless whether they are done in public or private. It would seem that a statute that sets out to outlaw one type of crime and then punishes for another type has ' no real or substantial relation to its objective.

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The apologists of the statute have pointed out what is summarized in Re McCue as follows: "To say the legislature must specify the many!civil and corrupt practices which might constitute one a lewd or dissolute person would often render the enforcement of a police regu lation in connection therewith impossible, and this without consider ing the indelicacy and impropriety of expression which would often be necessary." It would seem however that before a regulation can be enforced, one has to know how this regulation is violated at the risk that the disclosure would be indelicate. Law deals with human conduct in its totality, and not with only certain delicate phases, in the same manner as medicine does not distinguish between delicate parts of the human anatomy. And it is only fair to inform a person confronted with imprisonment of the specific act for which society exacts the drastic penalty.

Since a conviction under this subsection carries a verdict against the entire personality of the offender, it has. the effect of ostracising him in the community, more than any felony conviction could accomplish. In addition, section 290 of the California Penal Code requires every. body convicted under this subsection

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o register with the sheriff or chief of police..

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The uncertainty of acts and facts eaves the offense shrouded in nystery and arouses the curiosity und imagination. A business or proessional carrer is easily destroyed f the conviction receives any pub icity at all, because "Vaglewd" is the parlance of the police station efers to it-looms in such sinister proportions. This may be one of the reasons why comparatively few cases reach appeal courts even when they nvolve persons of substantial heans; another reason is the reluct ince of many lawyers to represent lients in "messy” cases.

tices; 3. Denial of Due Process because of vagueness of the statute. The Supreme Court held the first two charges without foundation and then went on to say that the question of invalidity of the statue was not properly before the court because it was not seasonably presented in accordance with the requirements of State law and because the remedy of State corpus was still available under the doctrine of Re Bell. (190 ́. 2n 488, 210 P. 2n 78, 80). There is a note of regret in the language of the decision for the "inability to decide petitioner's daims on the merits, whatever may be their ap peal" and also in the statement: The Supreme Court's View "We granted certiorari because of The recent decision of the Supreme serious questions raised as to the Court of the United States in Edelvalidity of the vagrancy statute and man v. California (344 U. S. 357), its application to petitioner." The may lead to an entire reevaluation minority opinion is outspoken in of the vagrancy law by the California its condemnation of the statute: State Courts. The facts underlying "It would seem a matter of superthe decision are as follows: The oregation to argue that the providefendant made political speeches sion of this vagrancy statute on its. of radical nature in a public park face and as enforced against petiand solicited funds to carry on his tioner is too vague to meet the safe. work of propaganda. He was conguarding standards of due process victed and appealed. The constituof law in this country." The dissent. tional issue was then raised for the ing opinion also refers to Lamzotta Erst time. There was a substitution v. New Jersey (306 U: S. 451) of attorneys and 'through inadvert.. where the court struck down as unance of the court clerks the new constitutional a statute which in attorney was not notified of the time many respects resembles the Caliof appellate hearings and had no fornia vagrancy section. opportunity to present oral argu. The reading of the Supreme Court. ment. The judgment was affirmed decision suggests the following and defendant's subsequent petition methods and points of importance for recall of the remittitur was in order to obtain a final test of the denied. Certiorari was then taken to validity of the cited subsection. First the U. S. Supreme Court apparently the jurisdiction of the trial court on the grounds: 1. Violation of the can be challenged since an unconstiDue Process Clause because the tutional statute is no statute at all defendant was denied an opporand confers no jurisdiction, Ex tunity to be heard in oral argument: Parte Siebold (100 U. S. 371). The at appeal; 2. Violation of the Equal defendant can independently from Protection Clause infringed by appeal proceed on habeas corpus discrimination enforcement prac under the doctrine of Re Bell, supra.