People v. Deibert

256 P.2d 355, 117 Cal. App. 2d 410, 1953 Cal. App. LEXIS 1830
CourtCalifornia Court of Appeal
DecidedApril 23, 1953
DocketCrim. 4915
StatusPublished
Cited by76 cases

This text of 256 P.2d 355 (People v. Deibert) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Deibert, 256 P.2d 355, 117 Cal. App. 2d 410, 1953 Cal. App. LEXIS 1830 (Cal. Ct. App. 1953).

Opinion

*415 FOX, J.

Defendants were convicted by a jury on three counts of violation of section 702 of the Welfare and Institutions Code. Bach appeals from the judgment and from the order denying his motion for a new trial.

About 10:30 p.m., on April 17,1952, Bob and Leonard, who were each 17 years old and high school students, entered the Pilot Wheel Club at Pismo Beach, California. Bob had a brief conversation with defendant Deibert, who was one of the owners of the café. The boys took seats at the bar; Deibert stood only some 6 feet away when they ordered two “coke highs”; the bartender, defendant Longley, looked up past the boys for a minute and then mixed the drinks. Bob paid $1.00 for the two drinks, which consisted of whiskey and Coca Cola. During their visit they imbibed several more drinks of the same variety for which they paid 50 cents each. Their friend, Larry, also 17 years old and a high school student, joined Bob and Leonard and took a taste from the glass of each. Thereupon Bob bought a “coke high” for Larry. The boys remained there for about an hour. The trio left the café but Bob and Leonard returned about 1:00 a. m., when they were joined by another boy. All were served more “coke highs.” Bob testified that he and Leonard were served about six such drinks during the evening and early morning.

Longley testified that he did not serve alcoholic beverages to any of these boys and would not have served them such drinks without cheeking first to see whether they were over 21 because they looked young. Deibert denied having had any conversation with Bob that night. He testified that he did not see the boys on his premises prior to their apprehension by Mr. Sutherland, a state liquor control officer.

Defendants contend that the evidence was insufficient to support the verdict in that it failed to show that any of the minors was “encouraged to use intoxicating liquor to such an extent that he became idle, dissolute and immoral. ’ ’ It was not necessary, however, to show that the sale of alcoholic beverages to these minors resulted in their actual entry upon an idle or immoral course of conduct. (People v. Wilhite, 49 Cal.App. 246, 250 [193 P. 151].) The main purpose of the Juvenile Court Law is to prevent the delinquency of children. By the provisions of section 702, Welfare and Institutions Code, any act or omission which “tends to cause or encourage” a minor to become a delinquent is made crim *416 inal. A case is therefore established when the evidence proves acts or omissions on the part of the defendants which tend to cause or encourage the minors to lead an idle, dissolute, lewd or immoral life. (People v. Calkins, 48 Cal.App.2d 33, 35 [119 P.2d 142]; People v. Cohen, 62 Cal.App. 521, 526 [217 P. 78]; People v. Kinser, 99 Cal.App. 778, 782 [279 P. 488].) Whether serving alcoholic beverages to a minor tends to cause him to become an idle, lewd, dissolute or immoral person is essentially a question for the jury. (People v. Calkins, supra; People v. McDougal, 74 Cal.App. 666, 674 [241 P. 598].) The jury impliedly found that the minors were served “coke highs,” containing whiskey and Coca Cola, by the defendants at the Pilot Wheel Club bar and that the furnishing of such drinks tended to cause them to come within the purview of section 700 (k) of the Welfare and Institutions Code. Such a finding is reasonable and is fully justified by the evidence. (People v. Perfetti, 88 Cal.App. 609, 614 [264 P. 318]; People v. De Leon, 35 Cal.App. 467, 470-471 [170 P. 173]; People v. Haney, 100 Cal.App. 295, 299 [279 P. 1054].)

Deibert claims the evidence fails to show that he “participated in any act or omitted to perform any duty which would tend to cause the minors to lead an idle, dissolute and immoral life.” The testimony of Bob that he engaged Deibert in conversation when he and Leonard first went into the club; that Deibert was only about 6 feet away when he ordered two “coke highs” from Longley; that the latter upon receiving Bob’s order for such alcoholic beverages, looked past him briefly in the direction of Deibert and then filled the order, justified an inference on the part of the jury that Longley, the bartender, sought and received the approval of Deibert before he served the minors the first “coke highs.” The minority of the boys must have been apparent in view of Longley’s statement that he would not have served them because they looked so young. Furthermore, the jury had an opportunity to see them on the stand and appraise the youthfulness of their appearance. It would, of course, have been unnecessary for Longley to secure Deibert’s consent to serve the boys if the drinks ordered had been nonalcoholic. Such tacit approval could reasonably be inferred to apply to the serving of subsequent alcoholic drinks. It is thus plain that Deibert did participate in an act and omit to perform a duty which resulted in these boys being served a number of drinks containing alcohol. The jury *417 could reasonably have concluded that such conduct had a tendency to cause the minors to become delinquent.

Defendants also challenge the sufficiency of the evidence on the theory that the words “idle, dissolute, lewd and immoral” (see § 700 (k) Welf. & Inst. Code) refer to sexual misconduct and that none was shown. They are in obvious error. “Idle” certainly does not have such a connotation. It means: not occupied or employed; to loaf or dissipate one’s time. (See Webster’s New Internat. Dict., 2d ed.) The term “immoral” is not confined to sexual matters. (Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 740 [227 P.2d 449].)

Defendants contend that section 22, Article XX of the California Constitution and the Alcoholic Beverage Control Act cover the entire field of liquor control and any violations thereof, thereby precluding the prosecution of defendants under section 702 of the Welfare and Institutions Code on a contributing charge. This argument is without foundation. Section 69 of the Alcoholic Beverage Control Acts repeals certain specific statutes. It does not include among them section 702 of the Welfare and Institutions Code. “. . . when the legislature repeals certain acts and excludes mention of other acts even though they refer to the same subject, it is the intention of the legislature to leave standing those acts which are not mentioned. ’ ’ (In re Zadro, 16 Cal.App.2d 398, 399-400 [60 P.2d 557, 986].) Thus the effectiveness of section 702 of the Welfare and Institutions Code in dealing with conduct involving alcoholic beverages which tend to contribute to the delinquency of minors remains undiminished. Here the acts of the defendants are punishable because they have a tendency to cause minors to become delinquent. This aspect of defendants’ acts is not covered by the Alcoholic Beverage Control Act. By legislative design such acts constitute an independent offense. (See People v. Baker, 38 Cal.App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sanford v. Garamendi
233 Cal. App. 3d 1109 (California Court of Appeal, 1991)
Pressley v. State
454 A.2d 347 (Court of Appeals of Maryland, 1983)
State v. DeBoucher
660 P.2d 471 (Court of Appeals of Arizona, 1982)
State v. Shurtliff
635 P.2d 1294 (Montana Supreme Court, 1981)
Edgington v. County of San Diego
118 Cal. App. 3d 39 (California Court of Appeal, 1981)
People v. James P.
115 Cal. App. 3d 681 (California Court of Appeal, 1981)
Pryor v. Municipal Court
599 P.2d 636 (California Supreme Court, 1979)
People v. Heffner
70 Cal. App. 3d 643 (California Court of Appeal, 1977)
Dillon v. State
357 A.2d 360 (Court of Appeals of Maryland, 1976)
In Re JT
40 Cal. App. 3d 633 (California Court of Appeal, 1974)
People v. Mancha
39 Cal. App. 3d 703 (California Court of Appeal, 1974)
State v. Fitzpatrick
Montana Supreme Court, 1973
S S v. State
299 A.2d 560 (Supreme Judicial Court of Maine, 1973)
Tip Top Foods, Inc. v. Lyng
28 Cal. App. 3d 533 (California Court of Appeal, 1972)
People v. Superior Court
14 Cal. App. 3d 935 (California Court of Appeal, 1971)
People v. Brown
10 Cal. App. 3d 169 (California Court of Appeal, 1970)
ESG v. State
447 S.W.2d 225 (Court of Appeals of Texas, 1969)
E. S. G. v. State
447 S.W.2d 225 (Court of Appeals of Texas, 1969)
Grier v. Daniel R.
274 Cal. App. 2d 749 (California Court of Appeal, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
256 P.2d 355, 117 Cal. App. 2d 410, 1953 Cal. App. LEXIS 1830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-deibert-calctapp-1953.