Centennial Series: Long Beach & The Law
In honor of the Long Beach Bar Association’s Centennial, this is a series of historical notes on cases and courts in Long Beach through the decades.
July -Silly Styles & the Seventies
For those of us who lived through them, the 1970s summons images of polyester leisure suits, platform shoes and the throb of the disco beat (we don’t have to reminisce about the latter – for some reason disco hasn’t died entirely). The Bicentennial was widely celebrated (commercially, at least). Then the name “Watergate” pops up. We won’t go into that except to note that the law on executive privilege was further developed and the nation received the first Chief Executive no one had ever voted for on the federal level. Towards the end of the decade a revolution in Iran changed the face
of international politics through to the present
day. There was a lot going on in the Seventies.
Long Beach entered a period of renewal.
Downtown had sadly decayed. A new civic
center was built (currently in the process of
replacement 40 years later). The Long Beach
Grand Prix began as a Formula 5000 race in
1975 and graduated to a Formula One format
The 70's saw the sad end of the Pike
Amusement Park, finally buried by
competition from more modern (and
cleanly) amusement parks. But before it
final demise, the fascinating odyssey of an
old outlaw was revealed within one of the
attractions. On December 8, 1976, an
episode of the television “The Six Million
Dollar Man” was filming at the Pike (entitled
“Carnival of Spies” for you fans out there –
Anyone? Hello?). Outside of the “Laff in the
Dark” ride, a mannequin hanging from a gallows had been dangling for many years.
When a production assistant tried to move the
“hanged man” the arm broke off revealing
human bone and muscle tissue. The coroner
determined the deceased had been killed by a
gunshot to the chest. The body was petrified,
covered in wax and several layers of
phosphorous paint. (I would assume the
production assistant had been petrified by his
experience as well). This was the body of Elmer
McCurdy, an unsuccessful train robber who had
been shot and killed in 1911. He and his gang
mistakenly stopped a passenger train instead
of the one with $400,000 in cash they had
intended to rob. Their take from the robbery was just $46, two demijohns of whiskey and the conductor’s watch. (McCurdy had previously tried to rob a bank, but when the fuse to his explosives would not ignite and open the safe, they made off with $150 in coins from a teller’s tray.) McCurdy got drunk on the whiskey and was found after being traced from the scene of the crime by bloodhounds. McCurdy fire the first shot and was killed by the return fire of the sheriff’s posse. His body was embalmed, but unclaimed. The undertaker, Joseph Johnson of the Johnson funeral home in Pawhuska, Oklahoma, refused to release or bury the body until his fees were paid. He exhibited the body for a nickel a view.
In 1916, two men claiming to be Elmer’s brothers showed to claim the body and to ship it to San Francisco for a “proper burial.” They weren’t Elmer’s brothers and they had no intent of shipping the body to San Francisco. They were James and Charles Patterson who ran a traveling carnival. Elmer’s body was featured in the touring show as “The Outlaw Who Would Never be Captured Alive.” In 1922 the body was sold to Louis Sonney who operated a Museum of Crime which featured wax replicas of such luminaries as the Jesse and Frank James. Elmer was the real deal and boosted attendance.
Film produced Dwain Esper leased Elmer for his movie “Dope Fiend!” and displayed the body in movie house lobbies as a “dead dope fiend.” When Sonney died in 1949 to body was placed in storage in Los Angeles. Elmer’s movie career continued with an appearance in the 1968 film “She Freak.” From there, he was sold to the operator of the Hollywood Wax Museum. The body suffered some damage (fingers and toes were lost) making Elmer “too gruesome” to display in the opinion of owner Spoony Singh. He sold to Ed Liersch, part owner of the Pike and Elmer greeted Laff in the Dark riders from the 60s on. And there you are – maybe crime doesn’t pay, but it can make for a colorful post-mortem career. Elmer McCurdy lives on as a Long Beach legend.
And speaking of the Pike’s last days, in Bank of America v. City of Long Beach (1975) 50 cal.App.3d 882, a court decision denying a license renewal to a carnival game was reversed. “Clock-O-Line” (similar to Loof’s Lite a Line which still operates sans Loof) had operated for 22 years. Application for renewal of the license (by Bank of America as executor of the owner’s estate) was denied on grounds it was a game of chance – players rolled balls into holes on a board hoping to light up a line ala tic-tac-toe. Police and City officials testified at the renewal hearing that, in their opinion, chance outweighed any quantifiable skill. The bank had several witnesses with contrary opinions, but they were not allowed to speak -- “the bank was denied the opportunity to present evidence on the only issue which the council had before it -- whether the game was one of skill or chance. A full opportunity to present a defense is an essential ingredient of due process, especially when the heavy hand of government is about to deny to an individual the right to pursue an occupation.” The Bank (not an individual pursuing an occupation) was entitled to a new and fair hearing. The court declined to find that a previous ruling in favor of “Lite-O-Line” (enjoining City from closing it down) had any preclusive effect against the City: “we are not here concerned in any way with the injunction previously issued by the superior court in the case involving Lite-O-Line. We express no opinion as to the continuing effect of that injunction on the Lite-O-Line game. The fact that Lite-O-Line is licensed does not preclude Long Beach from determining whether or not Clock-A-Line is a game of chance.”
A curious case arising from criminal arena was People v. Barben (1979) 88 Cal.App.3d 215. Mr. Barben operated an adult book store, but he was not charged with violating obscenity laws. He sold his own homemade room deodorizer out of his store, and was charged under Business & professions Code §4050 which prohibited the sale of “poisons” by anyone other than “registered pharmacists.” Convicted, he was exonerated on appeal because the definition of “poison” did not pass constitutional muster: “the inclusion of items like paint and paint thinner in the definition of poison makes graphic the seeming absurdity of the statutory scheme before us. Pursuant to a literal reading of sections 4050 and 4160, only a registered pharmacist (or someone acting under the direction of one) may sell many of the supplies commonly required by a painter.”
In People v. Goudeau (1970) 8 cal.App.3d, it was held that a defendant’s right to due process was not violated by the court’s refusal to call for a court reporter. The United States Supreme Court had previously held that individuals convicted of armed robbery were entitled to a reporter as part of their due process rights so as to be able to mount an appeal. But no such right attached to a municipal court hearing: “in misdemeanor proceedings a court reporter is not required unless ordered by the court. (See Code Civ. Proc., § 274c ‘[The] presence of an official court reporter in a criminal proceeding in the municipal court is dependent upon the discretion of the judge thereof.’” The court reasoned that a settled statement was sufficient for appeals of a misdemeanor conviction. Did the distinction between felony and misdemeanor and trials implicate the equal protection clause? No. “The fact that the California Legislature has made the presence of a reporter mandatory at a felony trial and discretionary in misdemeanor proceedings is not a denial of equal protection. The possible consequences of a felony prosecution are far more severe than for the conviction of a misdemeanor. Therefore, it is reasonable for the Legislature to provide additional safeguards in a felony prosecution to ensure that there is more than one method available to provide an adequate record of the trial.”
Long Beach Municipal Court was fertile ground for other decisions with a far reach. In Esteybar v. Municipal Court for the Long Beach Judicial District (1971) 5 Cal.3d 119 the California Supreme Court held that vesting final discretion on arraignment of a “wobbler” charge violated the separation of powers doctrine.
The petitioner had been charged with possession of marijuana, which could have been treated as either a felony or a misdemeanor. Although the municipal court decided to proceed on a misdemeanor charge, the prosecuting attorney withheld consent under Cal. Penal Code § 17(b)(5). “The prosecution of a case by the district attorney involves an exercise of executive power, and as previously stated, the magistrate's act of holding a defendant to answer is a judicial act for the purposes of this section of the Constitution. Since the exercise of a judicial power may not be conditioned upon the approval of either the executive or legislative branches of government, requiring the district attorney's consent in determining the charge on which a defendant shall be held to answer violates the doctrine of separation of powers.”
Long Beach would continue to grow and redevelop its resources in the decades to come, as we shall see in upcoming segments.
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The LBBA would like to extend a special thank you to Ken Freedman for his work in preparing this series.