Certiorari to review petitioner's state court conviction under a
California vagrancy statute was improvidently granted, and the writ
is dismissed. Pp. 358-362.
1. The claim that his conviction violated the Due Process Clause
of the Fourteenth Amendment, because the statute was vague and
uncertain, is not properly before this Court when the conviction
was affirmed below by default in accordance with state law. Pp.
344 U. S.
2. The claim that his rights under the Equal Protection Clause
of the Fourteenth Amendment were infringed by discriminatory
enforcement of the vagrancy statute was disposed of on state
procedural grounds, and cannot be considered here. P. 344 U. S.
3. Denial of his motion to recall the remittitur and vacate the
judgment of the appellate court rested on an adequate state ground,
and the claim that this denial deprived him of a hearing in the
appellate court contrary to the Due Process Clause of the
Fourteenth Amendment cannot be considered here. Pp. 344 U. S.
Page 344 U. S. 358
MR. JUSTICE CLARK delivered the opinion of the Court.
Petitioner stands convicted under § 647(5) of the Penal Code of
California, which provides in relevant part that
"Every . . . dissolute person . . . [i]s a vagrant, and is
punishable by a fine of not exceeding five hundred dollars ($500),
or by imprisonment in the county jail not exceeding six months, or
by both such fine and imprisonment."
The conviction was affirmed by the Appellate Department of the
Los Angeles County Superior Court in an order which recited that
the appeal had been submitted without argument. A motion to recall
the remittitur and vacate the judgment of the appellate court was
denied without opinion after a full hearing before three judges. We
granted certiorari because of serious constitutional questions
raised as to the validity of the vagrancy statute and its
application to the petitioner. 343 U.S. 955. However, on oral
argument, doubts arose as to whether the federal questions were
properly presented by the record. Accordingly, it is necessary at
the outset to determine whether we have jurisdiction in this
Petitioner contends, first, that his conviction violates the Due
Process Clause of the Fourteenth Amendment because the vagrancy
statute is vague, indefinite and uncertain. The record indicates
that this defense was not raised on trial, but was presented for
the first time as the fifth of petitioner's grounds of appeal,
stated as follows: "5. Vagrancy statute is unconstitutional because
vague and indefinite."
It is clear that this Court is without power to decide whether
constitutional rights have been violated when the federal questions
are not seasonably raised in accordance with the requirements of
state law. Hulbert v. City of Chicago, 202 U.
(1906); Mutual Life Ins. Co. v. McGrew,
188 U. S. 291
188 U. S. 308
(1903). Noncompliance with such local law can thus be an adequate
Page 344 U. S. 359
for a decision below. Aside from state law regarding the scope
of review in cases such as this one, we note that California
permits affirmance in criminal cases where the appellant fails to
appear. [Footnote 1
] It follows
that the question whether the vagrancy statute is invalid under the
Fourteenth Amendment is not properly before us.
The argument that petitioner's rights under the Equal Protection
Clause of the Fourteenth Amendment were infringed by discriminatory
law enforcement merits only brief comment. The evidence adduced on
trial showed, at most, that the vagrancy statute is not used by the
Los Angeles authorities in all of the cases in which it might be
applicable. Doubtless recognizing the necessity of showing
systematic or intentional discrimination, petitioner made an offer
of proof phrased as follows,
"I want to show by the police records that there are thousands
and thousands of individuals in this city that are walking around
that have committed many more offenses than the defendant that have
never been charged with vagrancy."
This offer was made in connection with a subpoena addressed to
the local police records section. On motion of the city attorney,
the subpoena was quashed on the ground that the accompanying
affidavit did not comply with the requirements of state law. Since
California law determined this action, there is no federal question
preserved for review in this aspect of the case. Hedgebeth v.
North Carolina, 334 U. S. 806
Petitioner urges, finally, that he was deprived of notice and
opportunity to have a hearing in the appellate court. A careful
study of the record discloses these facts: on
Page 344 U. S. 360
December 13, 1949, one day after sentence was imposed, the
attorney who represented petitioner during the nine-ay trial in Los
Angeles Municipal Court filed written notice of appeal in that
court. An application for substitution of attorneys was there filed
and granted on February 7, 1950. The substituted attorney
thereafter appeared in the trial court at hearings on the
settlement of the statement on appeal. Preparation of that
statement was a lengthy process, not concluded until June 18, 1951,
when it was allowed and settled in final form by the trial judge.
After the Appellate Department affirmed the conviction,
petitioner filed a motion to "Recall the Remittitur and to Vacate
the Judgment" of the Appellate Department on the ground that its
"was occasion[ed] by the inadvertence, and mistake of fact of
the defendant and of the clerk of the above entitled court, and on
the incomplete presentation of all the facts and law by the
defendant. . . ."
In a supporting affidavit, petitioner's original attorney stated
that he received notice that the appeal had been set for argument;
that he then went to the office of the Appellate Department clerk
and advised the person attending the desk that the substituted
attorney was the proper person to notify, and was assured that
petitioner's then counsel would be notified of the date of the
hearing. Substituted counsel filed an affidavit stating that he had
not received such notice. [Footnote
Page 344 U. S. 361
The motion to recall the remittitur and vacate the judgment of
the Appellate Department asserted no deprivation of any federal
constitutional right. Further, the motion sought what, under
California law, is an extraordinary remedy, not available where the
"jurisdiction to render the judgment complained of and it does
not affirmatively appear that it was the result of fraud,
imposition or misapprehension of facts."
People v. Stone,
1949, 93 Cal. App. 2d
, 861, 210 P.2d 78, 80, and cases there cited; 23
Calif.L.Rev. 354. [Footnote 4
Respondent has also suggested that state habeas corpus was
available to petitioner to test the constitutionality of his
restraint. This is borne out by In re Bell, 19 Cal. 2d
, 122 P.2d 22 (1942), in which the state supreme court
decided that California habeas corpus may be used to test the
constitutionality of a statute under which the applicant has been
convicted. The writ is, in fact, there stated to be the only remedy
available for this purpose where the applicant has exhausted his
remedy by appeal. Under California law, habeas corpus can also be
used to raise other constitutional objections to criminal
proceedings, such as deprivation of right to counsel. In re
19 Cal. 2d at 501, 122 P.2d 22. The denial of
petitioner's motion, therefore, rested on an adequate state ground,
his choice of the wrong remedy under local law. Woods v.
Nierstheimer, 328 U. S. 211
328 U. S. 214
(1946). This is not a case in which there is serious doubt about
the nature of the ground on which the decision below rested.
Cf. State Tax Commission v. Van Cott, 306 U.
(1939); Minnesota v. National Tea Co.,
309 U. S. 551
(1940); Herb v. Pitcairn, 324 U.
(1945). We are thus without power
Page 344 U. S. 362
to decide petitioner's claims on the merits, whatever may be
their appeal. The writ was improvidently granted, and must be
dismissed. Stembridge v. Georgia, 343 U.
It is so ordered.
MR. JUSTICE JACKSON concurs except that he thinks it is not
material whether California will grant habeas corpus in this case.
True, the petitioner's original appeal to the California court
sought to raise a federal question. That was not passed upon
because the appeal was dismissed for default. Whether the default
should be considered excusable by any court is left highly in doubt
by the record. At all events, in asking relief from it, there was
no claim that to take a default under such circumstances is
forbidden to a state court by the Constitution of the United
States, and such a claim would be frivolous if made. Hence, the
petitioner is out of court for reasons of state law and practice,
and the writ of certiorari should be dismissed.
See People v. Garza,
1927, 86 Cal. App. 97, 260 P. 390;
Rule 8, Rules on Appeal from Municipal Courts and Inferior Courts
in Criminal Cases, as amended to January 6, 1947; Deering's
Cal.Penal Code, 1949, § 1253; People v.
Sukovitzen, 67 Cal. App. 2d
, 155 P.2d 406 (1945). To the same effect, Dowd v.
United States, 340 U. S. 206
Apparently the statement was agreed upon some time before June
18, judging from the docket entry of November 6, 1950, "Defendant's
Counsel to engross Statement on Appeal," and an affidavit dated
March 7, 1951, showing service of the engrossed statement on
Rule 3(b) of Revised Appellate Department Rules provides, in
part, that "Failure of the clerk to mail any such notice [of
hearing] shall not affect the jurisdiction of the Appellate
See People v. McDermott,
97 Cal. 247, 32 P. 7 (1893),
in which a motion to recall the remittitur of the State Supreme
Court was denied, clearly on state grounds, under circumstances
similar to those in the instant case.
MR. JUSTICE BLACK with whom MR. JUSTICE DOUGLAS concurs,
The petitioner was convicted of "vagrancy" in the Municipal
Court of Los Angeles. He was given a 90-ay jail sentence. The
conviction for vagrancy was based primarily on what he had said in
public speeches made in a Los Angeles park. He appealed to the
Appellate Department of the Superior Court which was the highest
court in California in which he could obtain review. One of a
number of grounds of appeal was that the vagrancy statute was
unconstitutional because vague and indefinite. The rules of the
California appellate court specifically require that an appellant
or his attorney of record shall be mailed notice of the date on
which his appeal will be heard. California admits that
Page 344 U. S. 363
no such notice was given petitioner or his counsel of record on
appeal and that neither knew the case was set for hearing. As a
result, neither was present when the case was called in the
appellate court. Consequently, that court affirmed the jail
sentence by default, without argument or consideration of the
merits of the conviction or the constitutionality of the vagrancy
statute. Immediately after discovery of this default affirmance,
petitioner moved to vacate the action. With full knowledge of all
the foregoing facts, the appellate court denied the motion.
Petitioner has thus had his constitutional contentions rejected and
his conviction affirmed without notice and an opportunity to be
heard through himself or counsel. In California, the right of
"is guaranteed by the Constitution to the prisoner, and is as
sacred as the right of trial by jury. It is one of the means the
law has provided to determine the question of his guilt or
Ex parte Hoge,
48 Cal. 3, 6; In re Alboria,
Cal. App. 42, 50-51, 272 P. 321. Under these circumstances, I agree
with petitioner that refusal to give him or his counsel an
opportunity to be heard in the appellate court denied him the due
process of law guaranteed by the Fourteenth Amendment. See In
re Oliver, 333 U. S. 257
333 U. S. 273
Cole v. Arkansas, 333 U. S. 196
333 U. S. 201
Powell v. Alabama, 287 U. S. 45
287 U. S. 68
] Such a denial of due
process cannot be justified by the state on any "adequate
nonfederal ground." For this reason, I would not dismiss the
certiorari, but would reverse or vacate the appellate court's
The Court rests its dismissed on a belief that the petitioner
can still test the validity of his conviction in a
Page 344 U. S. 364
habeas corpus proceeding in the California state courts. And the
Court's belief as to availability of a state remedy is buttressed
by a presumption that a state will not deny a remedy for
deprivation of a constitutional right such as here alleged.
Mooney v. Holohan, 294 U. S. 103
294 U. S. 113
Moreover, should California refuse to grant petitioner a remedy to
test the constitutionality of the Vagrancy Act, he could then seek
relief in a United States district court. See Moore v.
Dempsey, 261 U. S. 86
my doubt about the availability of an adequate state remedy leads
me to conclude that the wiser course here would be to vacate the
appellate court's judgment for a clarification of the bases of its
action. See State Tax Commission v. Van Cott, 306 U.
; cf. Herb v. Pitcairn, 324 U.
. For even superficial examination of the
California vagrancy statute and petitioner's trial under it will
reveal the gravity of the constitutional questions which petitioner
urges and which the appellate court left unconsidered and
Subsection 5 of § 647 of the Penal Code of California provides
that "Every idle, or lewd, or dissolute person, or associate of
known thieves . . . " is a vagrant, punishable by fine of not more
than $500 or by imprisonment of not more than six months, or both.
] Petitioner was
charged with and convicted only of being a "dissolute" person. The
ambiguity and consequent broad reach of this crime of
"dissoluteness" is patent. The trial court's efforts to reduce the
ambiguity greatly increased it. The judge told the jury that
petitioner was not accused of "any violation of any particular
act," but with being a person of "a certain status" or "in a
certain condition." His "character" alone was involved, since
"vagrancy is a status
Page 344 U. S. 365
or a condition, and it is not an act." Petitioner was therefore
to be tried for a subjective "status," not the easiest thing in the
world to prove or disprove. And petitioner's difficulty was not
made easier by these additional statements to the jury:
"Vagrancy is a continuing offense. It differs from most other
offenses in the fact that it is chronic, rather than acute; that it
continues after it is complete, and subjects the offender to arrest
at any time before he reforms. One is guilty of being a vagrant at
any time and place where he is found, so long as the character
remains unchanged, although then and there innocent of any act
demonstrating his character. . . . His character, as I said before,
is the ultimate question for you to decide."
The dictionary definition of dissolute given to the jury by the
court described a crime of such nebulous amplitude that no person
could know how to defend himself. The court said:
"Now, dissolute is defined as 'loosed from restraint, unashamed,
lawless, loose in morals and conduct, recklessly abandoned to
sensual pleasures, profligate, wanton, lewd, debauched.' Now, the
word 'dissolute,' as you see from this definition, covers many acts
not necessarily confined to immorality. Other laxness and looseness
and lawlessness may amount to dissoluteness."
During a nine-ay trial, the jury heard a number of witnesses who
patently did not like what petitioner said in the many speeches he
had been making in the park. There seems to be no doubt that his
speeches chiefly involved political or economic questions, and
included attacks on the local police force. One witness who
testified that petitioner had publicly accused him of being a thief
also swore that he had heard petitioner advocate "force
Page 344 U. S. 366
and violence, stating that a change could not be brought about
except by bullets." Other hostile witnesses testified to his use of
intemperate language. A policeman swore that petitioner had
prophesied that he "would not be given a fair trial" -- a prophecy
which I fear this record viewed as a whole does not entirely
refute. There was also evidence that petitioner had solicited funds
to aid him in carrying on his publicity work, and to help pay for
his defense in numerous cases that were instituted against him in
the municipal court. In one of these cases, he had been charged
with defacing a park bench of thick concrete by standing on it to
make a speech.
It would seem a matter of supererogation to argue that the
provision of this vagrancy statute, on its face and as enforced
against petitioner, is too vague to meet the safeguarding standards
of due process of law in this country. This would be true even were
there no free speech question involved. And, in that field, we have
"It is settled that a statute so vague and indefinite, in form
and as interpreted, as to permit within the scope of its language
the punishment of incidents fairly within the protection of the
guarantee of free speech is void, on its face, as contrary to the
Winters v. New York, 333 U. S. 507
333 U. S.
The free speech question was so obviously involved in this
vagrancy prosecution that the court charged the jury at length
about free speech. He even submitted to them the question whether
petitioner's speech constituted "a clear and present danger. . .
I adhere to the view that courts should be astute to examine and
strike down dragnet legislation used to abridge public discussion
of "views on political, social or economic questions."
Schneider v. New Jersey, 308 U. S. 147
308 U. S. 161
308 U. S.
In Cochran v. Kansas, 316 U. S. 255
316 U. S. 258
held that Kansas denied Cochran equal protection of the laws in
refusing him privileges of appeal it afforded to others.
A mere reading of the California vagrancy statute is sufficient
to show its similarity to a New Jersey law held invalid for
vagueness and ambiguity in Lanzetta v. New Jersey,
306 U. S. 451