I dissent.
I will not make any statement of the facts, as I conceive them to be disclosed by the record, because I do not think such a statement necessary to present my view of the question in issue here.
I am in accord with the majority opinion in holding the ordinance in question unconstitutional. However, with the conclusion holding such instruction unnecessary and not prejudicial, I cannot agree.
Unquestionably, during the whole trial, the prosecution sought to justify the arrest, when the assault occurred, by such ordinance, and the court instructed the jury that the acts attempted to be prohibited by the void ordinance were in fact prohibited by terms of a penal law, and in effect, thereby, instructed the jury that if they found the person sought to be arrested was doing any act forbidden by said ordinance, he was thereby committing a misdemeanor. Inasmuch as it appears that the person sought to be arrested at that time and place was admittedly carrying a banner which, it is claimed, was a violation of said ordinance and that he was doing so in the presence of a police officer who attempted to arrest him then and there, the effect of the instruction was to tell the jury that the act of carrying the banner, if it was a banner the display of which was forbidden by the said ordinance, was a misdemeanor and subjected him to arrest, that he had no right to resist the lawful arrest, — and therefore the defendant had no right to assist him in his resistance.
An unconstitutional ordinance cannot be declared to establish any right. It is void. It is apparent, from the fact that the ordinance was placed in evidence as a justification *Page 709 for the attempted arrest and the instruction approving the same, that the jury must consider it and under the admitted facts it is highly probable that it was, in fact, the real issue upon which the verdict was returned.
I do not see how any jury could possibly have returned a verdict other than one of guilty, as they did, with such an instruction before them. However, without such an instruction, I am of the opinion, after a careful consideration of the whole record, that it cannot be determined whether the jury would or would not have returned a verdict of guilty. This being so, I think this error in giving the instruction approving an unconstitutional ordinance was highly prejudicial to the defendant, and of such a serious nature that even the salutary provisions of section 4 1/2, article VI, of the Constitution, cannot be given application to uphold the judgment. (People v.MacPhee, 26 Cal.App. 218 [146 P. 522].
I therefore think the judgment should be reversed and the cause remanded for a new trial.