People v. Costello ( 1955 )

BISHOP, J.

It is made unlawful, by section 42.20 of the Los Angeles Municipal Code, for any person employed in a place where drink is sold to be consumed upon the premises, “to beg, solicit or importune any patron or customer of or visitor in such establishment to purchase any . . . drink ... to be consumed by any frequenter, habitue, or any vagrant or idle person about such place ...” The defendant was charged with having violated this section and has appealed from a 30-day sentence (and order of probation) following his conviction. We are of the opinion that the evidence does not sustain the conviction.

The evidence is without substantial conflict. A police officer ordered a drink in a café where the defendant was acting as bartender. After the drink was served the officer, a waitress employed in the place, who was behind the bar, engaged the officer in conversation and the defendant inquired if he (the officer) did not want to buy the waitress a drink. He did, and then several more, paying for them with marked bills which he recovered after arresting the defendant.

This evidence proves the offense charged if, and only if, the waitress was a “frequenter” or “habitue” within the meaning of the ordinance. We are convinced that she was neither. We do not have a built-in definition of the two words, as the court did in Mullen v. Larson-Morgan Co. (1933). 212 Wis. 52 [249 N.W. 67], where the statute defined a “frequenter” as including “every person, other than an employee, who may go in or be in a .. . public building . . . other than a trespasser,” but we find them defined in the dictionaries. “Habitue,” we are told, means: “a habitual frequenter of any place, especially one of amusement, recreation, and the like: as, an habitus of the billiard room.” (Cen-

tury Digest) ; “one who frequents a place or class of places: as, a habitué of the theatre (Webster’s New Int. Dictionary, 2d ed.). “Frequenter” is defined: “One who frequents; one who often or habitually visits or resorts to a place” (Century Dictionary) ; “one who frequents” (Webster’s New Int. Dictionary, 2d ed.). A reference to the verb is necessary to evaluate these definitions that use it. “Frequent”: “2. To visit often; resort to habitually; as, to frequent the theater” (Century Dictionary); “1. To visit often; to associate with, to be in, or to resort to, often or habitually; as ... to frequent lecture halls” (Webster’s New Int. Dictionary).

A crime is not to be built up by giving to the words that create it an unusual or seldom used meaning. (Gayer v. Whelan (1943), 59 Cal.App.2d 255, 262 [138 P.2d 763, 767].) We are of the opinion that it would be a violation of this rule of construction if “habitue” and “frequenter” were held to embrace the proprietor of a billiard hall; although he may be in attendance daily, he cannot be said to be “visiting” it or “resorting” to it. The same must be said of a cashier of a café; she is not one of those characterized as a “frequenter” or “habitue.” The evidence does not suggest that the waitress ever entered or remained in the café where the defendant tended bar except as an employee. If this interpretation opens the door to a new use of B girls, the city council can very quickly and very easily kick it shut. It is not for the courts to supply words that the present section does not contain.

The judgment and order granting probation are reversed.

Shaw, P. J., concurred.