In Re Bell

122 P.2d 22, 19 Cal. 2d 488, 1942 Cal. LEXIS 385

• Court: California Supreme Court
• Decided: February 13, 1942
• Docket: Crim. 4298
• Status: Published

Opinions

TRAYNOR, J. —

Petitioners, members of a labor union, while engaged in picketing certain ranches and orchards, were arrested and charged with violating sections 2 and 3 of an anti-picketing ordinance adopted by the Board of Supervisors of Yuba County in 1937. These sections read as follows : “Section 2. It is unlawful for any person to loiter, stand, or sit upon any public highway, alley, sidewalk or crosswalk so as to in any manner hinder or obstruct the free passage therein or thereon of persons or vehicles passing or attempting to pass along the same, or so as to in any manner annoy or molest persons passing along the same.”

“Section 3. It is unlawful for any persons to beset or picket the premises of another, or any approach thereto, where any person is employed or seeks employment, or any place or approach thereto where such employee or person seeking employment lodges or resides, for the purpose of inducing such employee or person seeking employment, by means of compulsion, coercion, intimidation, threats, acts of violence, or fear to quit his or her employment or to refrain from seeking or freely entering into employment. ’ ’

The complaint did not specify the acts of misconduct on the part of petitioners but followed the language of the ordinance. It charged petitioners in count 1 with violating any one “and/or” any other provision of section 2, and in count 2, with violating any one “and/or” any other provision of section 3. They were tried in the Justice’s Court of Marysville Township, County of Yuba, found guilty “as charged in the complaint,” and sentenced “on said conviction” to a fine of $500 or 6 months in jail. On appeal the superior court, the court of last resort in cases arising in a municipal or justice’s court (Cal. Const., art. VI, sec. 5) unheld the constitutionality of the ordinance and affirmed the conviction, but reduced the jail sentence to 3 months. Petitioners thereafter applied to the superior court for a writ of habeas corpus on the ground that the ordinance was unconstitutional. When that court denied the writ, petitioners renewed their application in the District Court of Appeal, but the latter court also denied the writ and upheld the ordinance as constitutional. Petitioners now ask this court for a writ of habeas corpus, contending that the ordinance prohibits peaceful picketing and therefore abridges freedom of speech, press and assemblage in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States and article I, sections 9 and 10 of the Constitution of California.

A preliminary question is whether the constitutionality of an ordinance may be tested by application for a writ of habeas corpus. Most jurisdictions permit such a use of habeas corpus. (See eases collected in 25 Am. Jur. 164, sec 29; 13 Cal. Jur. 225, sec. 8; 39 L. R. A. 450; 32 A. L. R 1054.) They adhere to the theory, however, that habeas corpus can lie, not to substitute for a writ of error, but only to test the jurisdiction of the trial court or to secure the release of persons detained without judicial authorization or under a void proceeding. (See 25 Am. Jur. 151, sec. 13; 13 Cal. Jur. 217, see. 4; Ex parte Nielsen, 131 U. S. 176 [9 S. Ct. 672, 33 L. Ed. 118]; Harlan v. McGourin, 218 U. S. 442 [31 S. Ct. 44, 54 L. Ed. 1101]; Ex parte Moran, 144 Fed. 594 [75 C. C. A. 396]; 1 Bailey, Habeas Corpus [1913], see. 2, 30 et seq.; 12 N. Y. L. Q. R 525.) The theory and the practice are somewhat inconsistent. In order to reconcile them the courts have resorted to the artificial reasoning of Ex parte Sieiold, 100 U. S. 371 [25 L. Ed. 717], that an unconstitutional statute is actually not a statute, and that a trial court therefore has no jurisdiction over the subject-matter of proceedings based upon such a statute. The unconstitutionality of a statute, however, is not a foregone conclusion but the very question at issue and it has traditionally been one that trial courts have jurisdiction to decide. (See 39 L. R. A. 454.) State courts constantly make decisions regarding the validity of statutes under 'the Constitution of the United States, and the United States Supreme Court, which reviews their determinations by writ of error, has expressly stated that they have jurisdiction in such eases. (See Robb v. Connolly, 111 U. S. 624 [4 S. Ct. 544, 28 L. Ed. 542].) If they lacked it the United States Supreme Court would be compelled to reverse the decision of a state court because of lack of jurisdiction without further inquiry into the merits of the case. (See Mansfield C. & L. M. R. Co. v. Swan, 111 U. S. 379 [4 S. Ct. 510, 28 L. Ed. 462].) It has never been held that a decision holding a statute invalid is void because the statute itself was void. ‘ Therefore, unless we adopt the peculiar theory that the court has jurisdiction to decide right, but not to decide wrong, we are driven to the conclusion that a decision is not void for lack of jurisdiction merely because it decides that an unconstitutional statute is valid.” (39 L. R. A. 454; see McGovney, Cases on Constitutional Law [1st ed.], pp. 198-200.)

A minority of courts, realizing the inconsistency between the practice of using habeas corpus to test constitutionality and the theory that it lies only to test jurisdiction, will not permit the question of constitutionality to he raised by habeas corpus. (See cases cited in 25 Am. Jur.; 39 L. R. A.; 32 A. L. R., all supra.) There is, however, a less drastic solution. The courts can permit an independent review by habeas corpus of matters over which the trial court had jurisdiction, apart from any remedy by appeal, because it is warranted by the importance of securing a correct determination on the question of constitutionality. “It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired. . . . the rule is not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” (Chief Justice Hughes in Bowen v. Johnston, 306 U. S. 19, 26, 27 [59 S. Ct. 442, 83 L. Ed. 455].) There are instances where habeas corpus affords the only method of testing constitutionality as when a statute upheld as valid at the time of conviction is subsequently declared invalid in another case and in the interim the petitioner either exhausts his remedy by appeal or the time for taking an appeal expires. (Ex parte Lockhart, 25 Okla. Cr. 429 [221 Pac. 119]; In re Jarvis, 66 Kan. 329 [71 Pac. 576].) In California only a writ of habeas corpus enables a higher court to decide the question of constitutionality in cases which, like the present one, arise in a justice’s or municipal court and can be appealed only to the superior court. (See Ex parte Siebold, supra, involving a similar situation.)

Habeas corpus is also widely used to test the constitutionality not only of a statute but of the procedure in petitioner’s trial, even though the trial court has jurisdiction to try the petitioner (see Ex parte Nielsen, supra; 35 Columb. L. Rev. 404 at 412), and any infringement of constitutional right during the trial may he raised on appeal. The federal courts have repeatedly held that habeas corpus lies if the accused has been deprived of such fundamental constitutional guarantees as the right to counsel (Johnson v. Zerbst, 304 U. S. 458 [58 S. Ct. 1019, 82 L. Ed. 1461]; see Powell v. Alabama, 287 U. S. 45 [53 S. Ct. 55, 77 L. Ed. 158, 84 A. L. R. 527]), the right to a fair trial free from mob violence (Moore v. Dempsey, 261 U. S. 86 [43 S. Ct. 265, 67 L. Ed. 543]) or free from the use of testimony known to the prosecution to be perjured (Mooney v. Holohan, 294 U. S. 103, 105 [55 S. Ct. 340, 79 L. Ed. 791, 98 A. L. R. 406].) (See, also, Turney v. Ohio, 273 U. S. 510 [47 S. Ct. 437, 71 L. Ed. 749], insuring the right to an impartial judge.) The federal courts regard these rights as so fundamental as to admit an additional special procedure to insure their protection once the remedy in the state courts is exhausted (Mooney v. Holohan, supra), or is no longer available (Johnson v. Zerbst, 304 U. S. 458 [58 S. Ct. 1019, 82 L. Ed. 1461].)

There are other situations in which habeas corpus is used, not as a test of jurisdiction, but to review a question of law that cannot otherwise be raised or is so important as to render the ordinary procedure inadequate. Thus, it lies to test whether there is probable cause to justify the committing magistrate in holding petitioner for trial. (Pen. Code see. 1487; Ex parte Williams, 52 Cal. App. 566 [199 Pac. 347]; Application of Hartwell, 28 Cal. App. 627 [153 Pac. 730]; see, also, cases cited in 13 Cal. Jur. 230, sec. 12; 25 Am. Jur. 170, sec. 37.) There is no other method of securing a review of the magistrate’s determination in this regard. (People v. Creeks, 170 Cal. 368 [149 Pac. 821]; Ex parte Williams, supra.) It also lies to test whether the complaint charges a public offense (Ex parte Williams, 121 Cal. 328 [53 Pac. 706]; Ex parte McNulty, 77 Cal. 164 [19 Pac. 237, 11 Am. St. Rep. 257]; People ex rel. Perkins v. Moss, 187 N. Y. 410 [80 N. E. 383,10 Ann. Cas. 309, 11 L. R. A. (N. S.) 528]; see, also, 13 Cal. Jur. 232, sec. 14; 25 Am. Jur. 174, sec. 42; and 35 Columb. L. Rev. 850 at 862) even though this question falls within the jurisdiction of the trial court and may be raised on appeal. Certain courts go so far as to permit the use of habeas corpus before trial when the statute of limitations has run upon the offense charged. (United States v. Mathues, 27 Fed. (2d) 137; see Ex parte Vice, 5 Cal. App. 153 [89 Pac. 983]; People v. McGee, 1 Cal. (2d) 611 [36 Pac. ]; People v. Hoffman, 132 Cal. App. 60 [22 Pac. (2d) 229]; see 35 Columb. L. Rev. 407.)

While a few courts require that all available remedies by appeal be exhausted before habeas corpus can be invoked to test constitutionality (see Goto v. Lane, 265 U. S. 393 [44 S. Ct. 525, 68 L. Ed. 1070]), most jurisdictions, including California, do not make the requirement mandatory (see cases collected in 13 Cal. Jur. 225, sec. 8; 25 Am. Jur. 164, sec. 29), and even permit the issue of constitutionality to be raised by habeas corpus before trial. (Ibid, Matter of Zany, 20 Cal. App. 360 [129 Pac. 295]; Ex parte Royall, 117 U. S. 241 [6 S. Ct. 734, 29 L. Ed. 868]; contra, Glasgow v. Moyer, 225 U. S. 420 [32 S. Ct. 753, 56 L. Ed. 1147]; Johnson v. Hoy, 227 U. S. 245 [33 S. Ct. 240, 57 L. Ed. 497].) Since the granting of a writ of habeas corpus, however, results in the release of the petitioner, while reversal on appeal may result merely in a new trial with the exclusion of those charges found based on unconstitutional enactments or the inclusion of that procedure found constitutionally guaranteed, the court may in its discretion refuse to grant the writ if the remedy by appeal is not exhausted. This rule, adopted by the federal courts (In re Lancaster, 137 U. S. 393 [11 S. Ct. 117, 34 L. Ed. 713]; In re Chapman, 156 U. S. 211 [15 S. Ct. 331, 39 L. Ed. 401]; Riggins v. United States, 199 U. S. 547 [26 S. Ct. 147, 50 L. Ed. 303]; United States v. Sing Tuck, 194 U. S. 161 [24 S. Ct. 621, 48 L. Ed. 917]; Henry v. Henkel, 235 U. S. 219 [35 S. Ct. 54, 59 L. Ed. 203]; see 35 Columb. L. Rev. 404 at 412, 414), should also be followed by the courts of this state.

In the present case petitioners, having exhausted their remedy by appeal, seek by habeas corpus to assert the invalidity of the ordinance as a whole. Habeas corpus is not merely the proper remedy under such circumstances but the only one that will enable this court to decide upon the constitutionality of the ordinance.

The ordinance must be judged on its face to determine whether it unconstitutionally prohibits acts that fall within the category of peaceful picketing. (Thornhill v. Alabama, 310 U. S. 88 [60 S. Ct. 736, 84 L. Ed. 1093]; Carlson v. California, 310 U. S. 106 [60 S. Ct. 746, 84 L. Ed. 1104]; Hague v. C. I. O., 307 U. S. 496, 518 [59 S. Ct. 954, 83 L. Ed. 1423]; Schneider v. State, 308 U. S. 147, 162-165 [60 S. , 84 L. Ed. 155]; Lovell v. Griffin, 303 U. S. 444, 451 [58 S. Ct. 666, 82 L. Ed. 949]; Stromberg v. California, 283 U. S. 359, 369, 370 [51 S. Ct. 532, 75 L. Ed. 1117]. See Near v. Minnesota, 283 U. S. 697 [51 S. Ct. 625, 75 L. Ed. 1357]; Yick Wo v. Hopkins, 118 U. S. 356 [6 S. Ct. 1064, 30 L. Ed. 220].) If certain of its provisions operate to prohibit peaceful picketing, they are invalid even though they also prohibit acts that may properly be made illegal. A penal statute that ‘ does not aim specifically at evils within the allowable area of State control, but on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press . . . lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure” and “results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.” (Thornhill v. Alabama, supra at 97.) It is not the function of the court to determine whether the restrictions imposed by the legislation can be validly applied to the facts of a particular case. “Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas. ” (Thornhill v. Alabama, supra at 97; Hague v. C. I. O., supra; Lovell v. Griffin, supra; Schneider v. State, supra.) Language prohibiting conduct that may be prohibited and conduct that may not affords no reasonably ascertainable standard of guilt and is therefore too uncertain and vague to be enforced. (Stromberg v. California, supra, 369-370; Herndon v. Lowry, 301 U. S. 242, 261-263 [57 S. Ct. 732, 81 L. Ed. 1066]; Lanzetta v. New Jersey, 306 U. S. 451 [59 S. Ct. 618, 83 L. Ed. 888]; De Jonge v. Oregon, 299 U. S. 353 [57 S. Ct. 255, 81 L. Ed. 278]; Hague v. C. I. O., supra; Schneider v. State, supra; In re Harder, 9 Cal. App. (2d) 153, 155 [49 Pac. (2d) 304]; Territory of Hawaii v. Anduha, 48 Fed. (2d) 171.) A conviction based upon such a statute cannot stand even though the acts of misconduct in the particular case could be validly prohibited by properly drafted legislation. (Thornhill v. Alabama, supra; Carlson v. California, supra.)

Section 2 of the present ordinance makes it a crime “for any person to loiter, stand, or sit upon any public highway, alley, sidewalk or crosswalk so as to in any manner hinder or obstruct the free passage ... of persons or vehicles . . . This language encompasses conduct that is well within the bounds of peaceful picketing sanctioned by the guarantees of due process of law. Thus a picket may be peaceful even though he loiters, stands, or sits upon a public highway, alley, sidewalk, or crosswalk, and thereby constitutes to some extent an obstruction to the free passage of persons and vehicles or an annoyance to persons who do not approve of his presence. (See Thornhill v. Alabama, supra; Carlson v. California, supra; In re Harder, supra; Territory of Hawaii v. Anduha, supra; In re Williams, 158 Cal. 550 [111 Pac. 1035].) The sweeping prohibition of section 2 would apply equally against peaceful pickets, shoppers engrossed in a window display, invalids in wheelchairs, acquaintances who stand engaged in conversation. The entire section is therefore invalid even though Tuba County might validly prohibit excessive and unnecessary obstruction of the streets and highways.

Section 3 of the ordinance likewise makes conduct generally recognized as peaceful picketing unlawful. Peaceful picketing in the course of a labor dispute involves besetting the premises of another for the purpose of inducing employees to quit their employment or dissuading others from seeking employment. The fact that to some extent compulsion, coercion, intimidation, or threats are employed does not detract from its peaceful nature so long as they constitute only economic, moral, or social pressure and not the pressure of violence. (See McKay v. Retail Automobile Salesmen’s Local Union No. 1067, 16 Cal. (2d) 311 [106 Pac. (2d) 373]; Parkinson Co. v. Building Trades Council, 154 Cal. 581 [98 Pac. 1027, 16 Ann. Cas. 1165, 21 L. R. A. (N. S.) 550; Lisse v. Local Union No. 31, 2 Cal. (2d) 312 [41 Pac. (2d) 314]; Pierce v. Stablemen’s Union, 156 Cal. 70 [103 Pac. 324].) The character of the picketing is determined not by the existence of a threat but by what is actually threatened. (See dissenting opinion of Justice Holmes in Vegelahn v. Cuntner, 167 Mass. 92 [44 N. E. 1077, 57 Am. St. Rep. 443, 35 L. R. A. 722].) A picket may point to the possibility of ousting from the union any employee crossing the picket line and thereby compel or coerce him to quit his employment. The provisions of section 3 prohibiting such conduct are invalid.

That part of section 3, however, prohibiting picketing by acts of violence is valid, for there is no constitutional sanction for violence in labor disputes. When part of a statute is declared unconstitutional, the remainder will stand if it is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute. (Ex parte Frazer, 54 Cal. 94; 5 Cal. Jur. 644; Cooley, Constitutional Limitations (8th ed.), vol. 1, p. 360.) Not only is the valid part of the present ordinance complete in itself, but the ordinance provides: “If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance.” (See Bacon Service Corp. v. Huss, 199 Cal. 21 [248 Pac. 235].)

The provisions of section 3 prohibiting picketing by acts of violence do not conflict with the general laws of the state relating to assault, battery, riot, disturbing the peace, and unlawful assemblage. An ordinance is invalid if it makes illegal the same acts that are made illegal by the general laws of the state. (Cal. Const., art. XI, sec. 11; Ex parte Sic, 73 Cal. 142 [14 Pac. 405]; In re Mingo, 190 Cal. 769 [214 Pac. 850]; In re Murphy, 190 Cal. 286 [212 Pac. 30]; Ex parte Stephen, 114 Cal. 278 [46 Pac. 86]; Ex parte Daniels, 183 Cal. 636 [192 Pac. 442, 21 A. L. R. 1172].) Picketing by acts of violence, however, is an offense distinct from assault, battery, riot, disturbing the peace, or unlawful assemblage, even though it may sometimes involve these acts. The nature of a crime involving violence varies with the purpose for which the violence is employed. This ordinance prohibits the use of violence for the purpose of preventing employees or patrons from entering premises being picketed in connection with a labor dispute. It therefore defines an offense different from general acts of violence unconnected with a labor controversy.

When a petitioner has been convicted of violating a statute that is entirely unconstitutional, the court will ordinarily issue a writ of habeas corpus releasing him from custody. The present ordinance, however, contains a valid provision prohibiting acts of violence. The complaint charges petitioners with picketing by acts of violence and therefore charges a public offense for such acts are not consistent with lawful action. (See cases cited in 13 Cal. Jur., pp. 235, 236, note 7; cf. Ex parte Peterson, 119 Cal. 578 [51 Pac. 859]; Ex parte McLaughlin, 16 Cal. App. 270 [116 Pac. 684]; In re Hernandez, 64 Cal. App. 71 [220 Pac. 423]; Ex parte Greenall, 153 Cal. 767 [96 Pac. 804]; In re Ah Sing, 156 Cal. 349 [104 Pac. 448].) Since the punishment imposed on petitioners is not excessive for violation of the valid provision of the ordinance, they can be released by habeas corpus only if it is clear that they were not convicted of violating that provision. (Ex parte Morrison, 88 Cal. 112 [25 Pac. 1064].)

The uncertainty surrounding their conviction arises from the ambiguity of the complaint, which charged them with violating any one “and/or” any other provision of the ordinance, count 1 referring to section 2 and count 2 referring to section 3. Petitioners were in effect charged with violating all the provisions of each section of the ordinance or any one provision of each section. They were found guilty “as charged” and sentenced “on said conviction.” It cannot therefore be determined from the face of the record whether or not they were found guilty of violating the one valid provision of section 3.

The expression “and/or”, which made possible a conviction couched in such general terms, has met with widespread condemnation. (Cochrane v. Florida East Coast Ry. Co., 107 Fla. 431 [145 So. 217]; Preble v. Architectural Iron Workers Union, 260 Ill. App. 435; Tarjan v. National Surety Co., 268 Ill. App. 232; State v. Dudley, 159 La. 872 [106 So. 364]; Russell v. Empire Storage & Ice Co., 332 Mo. 707 [59 S. W. (2d) 1061]; State v. Douglas, 339 Mo. 187 [95 S. W. (2d) 1179]; Drummond v. City of Columbus, 136 Neb. 87 [285 N. W. 109, 286 N. W. 779]; Kornbrodt v. Equitable Trust Co., 137 Ore. 386 [2 Pac. (2d) 236, 3 Pac. (2d) 127]; Allen v. State, 138 Tex. Or. 303 [136 S. W. (2d) 232]; Cobb v. State, 139 Tex. Cr. 337 [139 S. W. (2d) 272]; Putnam v. Industrial Commission, 80 Utah 187 [14 Pac. (2d) 973]; Employers’ Mutual Liability Ins. Co. v. Tollefson, 219 Wis. 434 [263 N. W. 376]; An And/Or Symposium, 18 A. B. A. Journal 574; 18 A. B. A. Journal 456, 524 (editorials); 42 West Va. L. Q. 235; H. H. Parsons, And/Or, 10 Cal. State Bar, J. 89, cf. H. Mumper, Unfair Tirade Against the Symbol ‘ ‘ And/Or ”, 10 Cal. State Bar. J. 187.) It is true that the expression has proved convenient in contracts and other instruments where, by its intentional equivocation, it can anticipate alternative possibilities without the cumbersome itemization of each one. (118 A. L. R. 1367; 43 Yale L. J. 918, 20 Marquette L. Rev. 101.) It lends itself, however, as much to ambiguity as to brevity. Thus it cannot intelligibly be used to fix the occurrence of past events. A purported conclusion that either one or both of two events occurred is a mere restatement of the problem, not a decision as to which event actually occurred. If a person is accused of violating an unconstitutional as well as a constitutional provision of a statute and the verdict by the use of “and/or” declares him guilty of violating either one or both provisions, it is an open question whether he is guilty of any punishable offense. The verdict in effect states that the accused is guilty or innocent of violating the constitutional provision. A comparable lack of precision was censured by the United States Supreme Court in Stromberg v. California, 283 U. S. 359, 368 [51 S. Ct. 532, 75 L. Ed. 1117, 73 A. L. R. 1484] : “The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute,'and the jury was instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. ... It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.” The ambiguity of the judgment in the present case would thus clearly warrant a reversal of the conviction on appeal or other direct attack. (See, also, People v. Moss, 33 Cal. App. (2d) (Supp.), 763, 767 [87 Pac. (2d) 932]; People v. Tomlinson, 35 Cal. 503, 508.)

A habeas corpus proceeding, however, is in the nature of a collateral attack, and a judgment that is collaterally attacked carries with it a presumption of regularity. (Johnson v. Zerbst, 304 U. S. 458, 468 [58 S. Ct. 1019, 82 L. Ed. 1461]; see 1 Freeman, Judgments (5th ed.) 780, et seq.j 15 Cal. Jur. 64, et seq.) This presumption of regularity applies to the proceedings of a justice’s court only if the judgment affirmatively shows, as in the present case, that the court has jurisdiction over person and subject matter. (Brush v. Smith, 141 Cal. 466 [75 Pac. 55]; Hayward v. Pimental, 107 Cal. 386 [40 Pac. 545]; Rowley v. Howard, 23 Cal. 401,404. See 15 Cal. Jur. 503; 6 Cal. Jur. Supp. 611.) The presumption, however, is not conclusive in a habeas corpus proceeding but places upon petitioners the burden of proving that their convictions were based not upon the constitutional but upon the unconstitutional provisions of the ordinance. (Johnson v. Zerbst, supra.) Unless they can sustain this burden they must be considered as having been convicted of violating the valid provision relating to acts of violence, and the judgment must be upheld.

A petitioner seeking habeas corpus, however, is not confined to the face of the record in attempting to sustain the burden of proving that his conviction was in violation of his constitutional rights. The courts of both the United States and California have declared that the remedy of habeas corpus permits an examination not only of the actual evidence introduced at petitioner’s trial but of any necessary additional evidence bearing upon the infringement of petitioner’s constitutional rights. (Moore v. Dempsey, 261 U. S. 86 [43 S. Ct. 265, 67 L. Ed. 543]; Mooney v. Holohan, 294 U. S. 103 [55 S. Ct. 340, 79 L. Ed. 791, 98 A. L. R. 406]; Herndon v. Lowry, 301 U. S. 242 [57 S. Ct. 732, 81 L. Ed. 1066]; Johnson v. Zerbst, supra; In re Connor, 15 Cal. (2d) 161 [99 Pac. (2d) 248]; In re Connolly, 16 Cal. App. (2d) 709 [61 Pac. (2d) 490]; In re Lake, 65 Cal. App. 420 [224 Pac. 126]; In re Chaus, 92 Cal. App. 384 [268 Pac. 422]; see, also, Fiske v. Kansas, 274 U. S. 380 [47 S. Ct. 655, 71 L. Ed. 1108]; De Jonge v. Oregon, 299 U. S. 353 [57 S. Ct. 255, 81 L. Ed. 278]; Norris v. Alabama, 294 U. S. 587 [55 S. Ct. 579, 79 L. Ed. 1074]; Powell v. Alabama, 287 U. S. 45 [53 S. Ct. 55, 77 L. Ed. 158, 84 A. L. R. 527].) This examination is made, not to pass upon the sufficiency of the evidence to support the verdict, but to determine what the verdict actually was, so that the court may decide whether it violates constitutional guaranties. Such an examination will be made in a habeas corpus proceeding whenever a petitioner has been deprived of due process of law, whatever form that deprivation has taken. If a court has no “jurisdiction” to enter a judgment against a defendant after depriving him of such constitutional guarantees as the right to counsel or to a fair trial free from mob domination, it has no “jurisdiction” to enter a judgment against him based upon an unconstitutional statute. An examination of the facts is permissible to determine whether a petitioner was denied due process of law with respect to the procedure at his trial; it is no less permissible to determine whether he was denied due process of law by being convicted of violating unconstitutional legislation.

In Herndon v. Lowry, supra, a defendant was convicted of the crime of attempting to incite an insurrection. On appeal from a denial of his petition for a writ of habeas corpus, the United States Supreme Court examined the evidence introduced at his trial, concluded that it revealed only conduct that was protected by the constitutional guarantee of freedom of speech, and held that his conviction under the statute was therefore a denial of due process of law requiring the issuance of a writ of habeas corpus.

In Johnson v. Zerbst, supra, a defendant petitioned for a writ of habeas corpus on the ground that he had been deprived of his constitutional right to be represented by counsel at his trial. The court held that petitioner was entitled to a release on habeas corpus if an examination of the facts supported his allegation, stating, “a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction. . . .” (p. 466.)

In Moore v. Dempsey, supra, petitioners asked for release by habeas corpus on the grounds that they had been deprived of due process of law because of mob domination of their trial. The court held that the actual facts should be examined to determine the truth of the allegations. In Mooney v. Holohcm, siipra, the court stated that an examination must be made of facts outside the record to determine whether petitioner was deprived of due process of law at his trial.

The eases of Fishe v. Kansas, supra; De Jonge v. Oregon, supra; Norris v. Alabama, supra; and Powell v. Alabama, supra, all hold that an examination should be made of the evidence introduced in the trial court whenever it is essential to a proper determination of constitutional questions. While not involving writs of habeas corpus, these eases mark the extent of the protection afforded by constitutional guaranties and are therefore applicable to habeas corpus proceedings concerned with infringement of constitutional rights. In Norris v. Alabama, supra, the court stated: “That the question is one of fact does not relieve us of the duty to determine whether in truth a federal right has been denied. When a federal right has been specially set up and claimed in a state court, it is our province to inquire not merely whether it was denied in express terms but also whether it was denied in substance and effect. If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights.”

The California cases are equally clear that on habeas corpus a court may examine the evidence introduced at the trial if necessary to determine properly the constitutional question at issue. In the case of In re Connor, supra, this court, following an application for a writ of habeas corpus, examined a transcript of statements made by petitioner at his arraignment to determine whether he had been deprived of his constitutional right to be represented by counsel at his trial. The court, treating the constitutional question as a jurisdictional one, stated: “Furthermore, the function of habeas corpus is to test the jurisdiction of the court to render judgment. It is not limited to the face of the proceeding, but extends to the record of the court below when necessary to determine jurisdiction.” The District Court of Appeal in the case of In re Connelly, supra, declared: “But the respondent argues that the rule cannot be applied unless the fact of immunity appears on the face of the indictment. The argument is based upon the all-too-broad statement that the function of habeas corpus is limited to the question of jurisdiction as it appears on the face of the proceedings. The accepted rule in this state (and the only one applicable under the code sections cited above) is clearly stated in In re Lake, 65 Cal. App. 420, 423 [224 Pac. 126], where the court says: ‘. . . While neither writ [habeas corpus or certiorari] is one of error, both extend to the entire record of the court below and to the evidence itself when necessary to determine jurisdiction. ’ ” Penal Code section 1484, moreover, provides that on habeas corpus proceedings the petitioner may “allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. The court or judge must thereupon proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require, and have full power and authority to require and compel the attendance of witnesses, by process or subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case.”

It is clear from the foregoing authorities that in a habeas corpus proceeding a court must look beyond the face of the record at the actual evidence when necessary to determine whether a petitioner has been deprived of constitutional rights. If the statute under which the petitioner was convicted is entirely unconstitutional, the court will discharge him on habeas corpus without examining the evidence. Conversely, if the statute is entirely constitutional, the conviction will be upheld without examination of the evidence. If, however, as in the present case, the statute is in part constitutional and in part unconstitutional and it cannot be determined from the • charge and conviction whether or not petitioner was tried and convicted for violating the valid part, the court must examine the evidence, not to test whether it is sufficient to support a verdict, but to determine whether petitioner was tried and convicted for violating the invalid part alone, in which case the conviction must fall, or whether he was tried and convicted for violating the valid part as well, in which case the conviction must stand. The petitioner has the burden of proving that he was not tried and convicted for violating the valid part of the statute.

Petitioners in the present case have failed to sustain the burden of proving that they were not tried and convicted for acts of violence since the transcripts of testimony at their trials reveal evidence of such acts. Some of the petitioners, along with 75 to 100 other men and women, were engaged in picketing the entrance to the Reed Ranch while others were in a large group picketing the entrance to the Datoni Orchard. Witnesses testified that at the Reed Ranch a large group of pickets stood in the middle of the road and refused to move when automobiles approached, thus forcing the automobiles to stop. An officer testified that he could have driven on only if he “had wanted to kill somebody.” Petitioners Bell, Davis and Walker participated in the stopping of cars. Bell was quoted as saying: “We are going to stop every damned automobile that comes in here.” Davis, according to a witness, walked up and down the middle of the road giving orders “to stop every car that comes through here.” Walker stated that “he was going to stop every damn automobile and to hell with the law. He would take care of them personally.” Some of the automobiles were permitted to.go through after having been stopped but no automobile, other than one used by officers, passed through the blockade at the Reed Ranch before the arrival of two deputy sheriffs.

The witness Newcomb testified that he was forced to stop at the Datoni Orchard about 3 :10 a. m. by a large group of men standing across the road waving flashlights. They gathered about his ear and ordered him to go back. A flashlight picture taken by a photographer at the scene shows seventeen men grouped about the car, eight of them directly in front of it. The photographer testified that there were about 65 men on the road and that Newcomb immediately turned around and left. Petitioners Knapp, Hamilton, Hinman, Wiseman, Day, and McKay were in this group and participated in the stopping of cars. Witnesses present at the Reed Ranch and the Datoni Orchard testified that the pickets’ action caused them to fear bodily harm.

This evidence reveals conduct exceeding the bounds of peaceful picketing. Pickets may bring themselves to the notice of persons entering the picketed premises, but may not forcibly stop automobiles and intimidate the occupants by gathering in large numbers. Such action is more than peaceful persuasion. It is forceful intimidation and constitutes violence.

Because petitioners have failed to sustain the burden of proving that they were not convicted of the one valid provision of the ordinance prohibiting acts of violence, the writ, heretofore issued is discharged and the petitioners are remanded to the custody of the sheriff of Yuba County.

Gibson, C. J., Shenk, J., and Houser, J., concurred.