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COMMONWEALTH v. RANDALL ET AL. (06/11/57)

June 11, 1957

COMMONWEALTH
v.
RANDALL ET AL., APPELLANTS.



Appeals, Nos. 71, 72 and 73, Oct. T., 1957, from judgments of Court of Quarter Sessions of Northampton County, Nov. T., 1955, Nos. 17, 17-B and 44, in case of Commonwealth of Pennsylvania v. Robert Randall et al. Judgments affirmed.

COUNSEL

Herbert Fishbone, with him David H. Miller, and Justin D. Jirolanio, for appellants.

B. V. O'Hare, Jr., Assistant District Attorney, with him Clinton Budd Palmer, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 183 Pa. Super. Page 606]

OPINION BY ERVIN, J.

Defendant, Robert Randall, was found guilty under the Act of June 3, 1953, P.L. 277, § 1, 18 PS § 4532, which provides: "Whoever, being of the age of twenty-one years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of eighteen years ... is guilty of a misdemeanor. ..." Defendants, Robert Randall and Sophie Wofsy, were also found guilty of violating Paragraph 1, § 493, of the Liquor Code, 47 PS § 4-493, which provides: "It shall be unlawful (1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits." The cases were tried together, the charges against both defendants having arisen out of the same circumstances and at the same time. Defendants' motions in arrest of judgment and for new trial were denied and sentences were imposed upon the defendants, whereupon the instant appeals were taken by both defendants.

Defendant Randall argues that the above referred to act of 1953 is so vague and indefinite that it violates the due process clause of the 14th Amendment to the United States Constitution, which provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life,

[ 183 Pa. Super. Page 607]

    liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is undoubtedly the law that to comply with this requirement of the Constitution "a statute must be sufficiently certain and definite to inform the citizen of the acts it is intended to prohibit. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law." 14 Am. Jur., Criminal Law, § 22; Com. v. Klick, 164 Pa. Superior Ct. 449, 453, 65 A.2d 440.

In support of his position, defendant Randall relies heavily on the case of Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, which involved a statute of the State of Utah prohibiting a conspiracy on the part of two or more persons "To commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws ...." Thirty-three persons were charged under this act with conspiring to encourage and practice polygamy. The entire statute was stricken down for being too vague and unenforceable. The court, in its opinion, stated: "It is obvious that this is no narrowly drawn statute. ... Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order." It is apparent that the Musser case is not authority for defendant's position that the phrase "corrupt the morals" is so vague and indefinite that it offends the due process clause of the Constitution. The statute in the Musser case related to acts deemed injurious not only to "public morals" but also to "public health ... or to trade

[ 183 Pa. Super. Page 608]

    or commerce or for the perversion or obstruction of justice or the due administration of the laws." In the case at bar we are concerned only with the word "morals" as related to children under the age of 18 years. This is a much more definite and restrictive area than that which was involved in the Musser case. We believe that the word "morals" has a definite and wellsettled meaning. Defendant Randall also placed great reliance upon the case of Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 121 A.2d 584. In this case the Pa. State Board of Censors had refused to approve display of a motion picture, "She Should'a Said No," involving the enticement of people into the sale and use of marijuana. The board, under this statutory authority, found that the film was "indecent and immoral" and, in the judgment of the board, tended to debase and corrupt morals. In the majority opinion of the Supreme Court the language of the statute was found to be vague and indefinite and therefore unconstitutional. In the majority opinion written by HORACE STERN, then Chief Justice, there will be found a review of the decisions of the Supreme Court of the United States on this subject.

The first case reviewed is Joseph Burstyn, Inc. v. Wilson, Commissioner of Education of New York, 343 U.S. 495. In that case a New York statute provided for the banning of a motion picture film if it or a part thereof was "obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime." The New York State Board of Regents determined that a certain film examined by them was sacrilegious and ordered a rescission of the license to exhibit it. An affirmation ...


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