Dahlstet v. Dahlstet

Petitioner has appealed from a judgment of the superior court which denied his petition for a writ of prohibition to restrain respondent municipal court and the People, as real party in interest, from proceeding in a pending criminal action in which he is charged with five counts of vagrancy in violation of section 653g of the Penal Code. He contends that section 653g is unconstitutional because of overbreadth and vagueness, and that respondent court erred in overruling his demurrer because the facts stated in the complaint "do not constitute a public offense" (Pen. Code, § 1004, subd. 4) and reveal "matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution" (id. subd. 5). Amicus curiae urges the unconstitutionality of the statute and joins in the contention that the facts stated show that petitioner was engaged in conduct which is protected by the First and Fourteenth Amendments of the United States Constitution.