OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of unlawfully carrying a switchblade knife. The punishment was assessed at sixty days in jail.
At approximately 4:00 A.M. on August 14, 1969, Officers Aycock, Ontiveros, and Privett of the Lubbock Police Department, were returning to the police station after having answered a call in the southwestern part of that city. In the 1900 block of Broadway, they noticed two shabbily dressed male youths down the sidewalk away from an automobile parked at the curb. The street was well-lighted, and the officers noticed that the two young men were barefooted, poorly dressed, and had extremely long hair.
Officer Ontiveros recognized appellant and remembered that he had been recently “handled for drugs.” The officers stopped and questioned appellant and his companion. Upon learning that appellant was unemployed, they arrested him for vagrancy, for having “no visible means of support”. A search conducted incident to the arrest
revealed the knife, which was the subject of the present prosecution.
Appellant contends that the trial court erred in overruling his motion to suppress the fruits of that search. He contends that Article 607, Vernon’s Ann.P.C., the statute used to justify the arrest, is unconstitutional and that therefore the search was invalid.
Article 607, V.A.P.C., was passed in compliance with Article 3, Section 46, of the Constitution of Texas
which imperatively required the legislature to enact effective vagrancy laws. Ex parte Strittmatter, 58 Tex.Cr.R. 156, 124 S.W. 906. Its passage was deemed essential due to “ . the growth of the state and the congestion in our large cities, where the idle, the vicious, and the depraved congregate around many public places . . . .” Ex parte Strittmatter, supra, at 907. The purposes of the Vagrancy Statute are: (1) to punish persons because of their status as vagrants
; and (2) to prevent future
crimes which are thought to flow from the vagrant’s mode of life.
The underlying rationale is that vagrants constitute a “moral pestilence”
against which the state has right to guard. City of New York v. Miln, 11 Pet. 102, 143, 9 L.Ed. 648 (1837).
On this appeal appellant contends that Article 607 is unconstitutionally vague and overbroad.
A statute is overbroad when it prohibits both activity which is protected by the Constitution of the United States and activity which is not so protected. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). As the Supreme Court noted in United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876):
“It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could rightfully be detained and who could be set at large.”
The inherent defect in the sections of Article 607 which are being challenged in the instant case is that the legislature has made the mere status of being able bodied and unemployed a crime. Judge Woodley, writing for this court on motion for rehearing in Ex parte Mittelstaedt, 164 Tex.Cr.R. 115, 297 S.W.2d 153, stated:
“While idleness is a prolific source of crime, it is not competent for the legislature to denounce mere inaction as a crime without some qualifications.”
The challenged sections of Article 607 make the status of poverty a crime without qualification, thus leaving this court to determine who may be punished and who may not. Compare Branch v. State, 73 Tex.Cr. R. 471, 165 S.W. 605, with Senegal v. State, 112 Tex.Cr.R. 408, 16 S.W.2d 1070.
Because he is of a certain status is not reason to punish a man as a criminal. Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L.Ed.2d 758 (1962). While it may be desirable that the state be enabled to anticipate, and thus prevent, future criminal activity, the price of doing so under this statute is to brand as present criminals both persons who might in the future commit an overt criminal act and those who may not. The status of being unemployed or without visible means of support is not a sufficient ground for criminal sanctions. Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L. Ed.2d 110 (No. 70-5030, 1972); Gordon v. Schiro, 310 F.Supp. 884 (E.D.La.1970); Wheeler v. Goodman, 306 F.Supp. 58 (W.D.N.C.1969); Decker v. Fillis, 306 F.Supp. 613 (D.Utah 1969); Goldman v. Knecht, 295 F.Supp. 897 (D.C.Colo.1969); Smith v. Hill, 285 F.Supp. 556 (E.D.N.C.1968); Hayes v. Municipal Court of Oklahoma City, 487 P.2d 974 (Okl.Cr.App.1971); Balizer v. Shaver, 82 N.M. 347, 481 P.2d 709 (1971); State v. Grahovac, 480 P.2d 148 (Hawaii Sup.Ct.1971); Arnold v. Denver, 171 Colo. 1, 464 P.2d 515 (1970); Portland v. James, 251 Or. 8, 444 P.2d 554 (1968); Parker v. Municipal Judge of City of Las Vegas, 83 Nev. 214, 427 P.2d 642 (1967);
Alegata v. Commonwealth, 353 Mass. 287, 231 N.E.2d 201 (1967); Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 229 N.E.2d 426 (1967).
A statute is unconstitutionally vague when it either forbids or requires “the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . ..” Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct 126, 70 L.Ed. 322 (1926).
Each of the challenged sections of Article 607 defines a vagrant as being a person who “has no visible means of support”
or who has “no property to support” him.
No standard is given to guide officers charged with enforcing this statute as to what is meant by these terms. Thus, the statute impermissibly places unfettered discretion in the hands of the police. Papachristou v. Jacksonville, supra; Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). A vagrancy prosecution cannot be used under our constitution as a substitute for a conviction which cannot be obtained on some other charge.
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OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of unlawfully carrying a switchblade knife. The punishment was assessed at sixty days in jail.
At approximately 4:00 A.M. on August 14, 1969, Officers Aycock, Ontiveros, and Privett of the Lubbock Police Department, were returning to the police station after having answered a call in the southwestern part of that city. In the 1900 block of Broadway, they noticed two shabbily dressed male youths down the sidewalk away from an automobile parked at the curb. The street was well-lighted, and the officers noticed that the two young men were barefooted, poorly dressed, and had extremely long hair.
Officer Ontiveros recognized appellant and remembered that he had been recently “handled for drugs.” The officers stopped and questioned appellant and his companion. Upon learning that appellant was unemployed, they arrested him for vagrancy, for having “no visible means of support”. A search conducted incident to the arrest
revealed the knife, which was the subject of the present prosecution.
Appellant contends that the trial court erred in overruling his motion to suppress the fruits of that search. He contends that Article 607, Vernon’s Ann.P.C., the statute used to justify the arrest, is unconstitutional and that therefore the search was invalid.
Article 607, V.A.P.C., was passed in compliance with Article 3, Section 46, of the Constitution of Texas
which imperatively required the legislature to enact effective vagrancy laws. Ex parte Strittmatter, 58 Tex.Cr.R. 156, 124 S.W. 906. Its passage was deemed essential due to “ . the growth of the state and the congestion in our large cities, where the idle, the vicious, and the depraved congregate around many public places . . . .” Ex parte Strittmatter, supra, at 907. The purposes of the Vagrancy Statute are: (1) to punish persons because of their status as vagrants
; and (2) to prevent future
crimes which are thought to flow from the vagrant’s mode of life.
The underlying rationale is that vagrants constitute a “moral pestilence”
against which the state has right to guard. City of New York v. Miln, 11 Pet. 102, 143, 9 L.Ed. 648 (1837).
On this appeal appellant contends that Article 607 is unconstitutionally vague and overbroad.
A statute is overbroad when it prohibits both activity which is protected by the Constitution of the United States and activity which is not so protected. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). As the Supreme Court noted in United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876):
“It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could rightfully be detained and who could be set at large.”
The inherent defect in the sections of Article 607 which are being challenged in the instant case is that the legislature has made the mere status of being able bodied and unemployed a crime. Judge Woodley, writing for this court on motion for rehearing in Ex parte Mittelstaedt, 164 Tex.Cr.R. 115, 297 S.W.2d 153, stated:
“While idleness is a prolific source of crime, it is not competent for the legislature to denounce mere inaction as a crime without some qualifications.”
The challenged sections of Article 607 make the status of poverty a crime without qualification, thus leaving this court to determine who may be punished and who may not. Compare Branch v. State, 73 Tex.Cr. R. 471, 165 S.W. 605, with Senegal v. State, 112 Tex.Cr.R. 408, 16 S.W.2d 1070.
Because he is of a certain status is not reason to punish a man as a criminal. Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L.Ed.2d 758 (1962). While it may be desirable that the state be enabled to anticipate, and thus prevent, future criminal activity, the price of doing so under this statute is to brand as present criminals both persons who might in the future commit an overt criminal act and those who may not. The status of being unemployed or without visible means of support is not a sufficient ground for criminal sanctions. Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L. Ed.2d 110 (No. 70-5030, 1972); Gordon v. Schiro, 310 F.Supp. 884 (E.D.La.1970); Wheeler v. Goodman, 306 F.Supp. 58 (W.D.N.C.1969); Decker v. Fillis, 306 F.Supp. 613 (D.Utah 1969); Goldman v. Knecht, 295 F.Supp. 897 (D.C.Colo.1969); Smith v. Hill, 285 F.Supp. 556 (E.D.N.C.1968); Hayes v. Municipal Court of Oklahoma City, 487 P.2d 974 (Okl.Cr.App.1971); Balizer v. Shaver, 82 N.M. 347, 481 P.2d 709 (1971); State v. Grahovac, 480 P.2d 148 (Hawaii Sup.Ct.1971); Arnold v. Denver, 171 Colo. 1, 464 P.2d 515 (1970); Portland v. James, 251 Or. 8, 444 P.2d 554 (1968); Parker v. Municipal Judge of City of Las Vegas, 83 Nev. 214, 427 P.2d 642 (1967);
Alegata v. Commonwealth, 353 Mass. 287, 231 N.E.2d 201 (1967); Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739, 229 N.E.2d 426 (1967).
A statute is unconstitutionally vague when it either forbids or requires “the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . ..” Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct 126, 70 L.Ed. 322 (1926).
Each of the challenged sections of Article 607 defines a vagrant as being a person who “has no visible means of support”
or who has “no property to support” him.
No standard is given to guide officers charged with enforcing this statute as to what is meant by these terms. Thus, the statute impermissibly places unfettered discretion in the hands of the police. Papachristou v. Jacksonville, supra; Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). A vagrancy prosecution cannot be used under our constitution as a substitute for a conviction which cannot be obtained on some other charge. Papachristou v. Jacksonville, supra. Vagrancy is not a shortcut to the requirements of due process of law. Mills v. Wainwright, 415 F.2d 787 (5th Cir. 1969); Green v. United States, 386 F.2d 953 (10th Cir. 1967); Portland v. James, supra.
Lacking intelligible standards to guide those charged with its enforcement, Sections 1, 2, 3, 4, 10, and 12, of Article 607, V.A.P.C., are violative of the Due Process Clause of the Fourteenth Amendment and cannot be upheld. Papachristou v. Jacksonville, supra; Ricks v. District of Columbia, 134 U.S.App.D.C. 201, 414 F.2d 1097 (1968); Cantrell v. Folsom, 332 F.Supp. 767 (M.D.Fla.1971); Gordon v. Schiro, supra; Lazarus v. Faircloth, 301 F.Supp. 266 (S.D.Fla.1969); Kirkwood v. Ellington, 298 F.Supp. 461 (W.D.Tenn.1969); Goldman v. Knecht, supra; Smith v. Hill, supra; Baker v. Bindner, 274 F.Supp. 658 (W.D.Ky.
1967);
Knowlton v. State, 257 A.2d 409 (Me.Sup.Jud.Ct.1969); Portland v. James, supra; Parker v. Municipal Judge of City of Las Vegas, supra; Alegata v. Commonwealth, supra; Fenster v. Leary, supra.
The arrest of appellant being invalid, the trial court erred in overruling appellant’s motion to suppress the fruits of that search. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
The state contends on this appeal that the arrest in question was valid tinder Article 14.03, Vernon’s Ann.C.C.P. The fact that appellant was barefooted, had long hair, and was shabbily dressed does not constitute probable cause to arrest. LSee Barnett v. D’Artois, 331 F.Supp. 1310 (W.D.La.1971); Hughes v. Rizzo, 282 F.Supp. 881 (E.D.Pa.1968). Nor do the overall circumstances presented furnish the state with a valid “stop and frisk” situation. Compare Sibron v. New York, supra, with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In view of our disposition of this cause other grounds of error will not be discussed. However, it should be noted that there is grave doubt that the knife introduced into evidence meets the definition of a switchblade knife. The knife before us here has neither a “spring” nor a “switch” and is what the legislature
probably
intended to define as a “throw blade knife.” See Article 483, V.A.P.C. The arresting officers described it as a “Philippine flipswitch knife” which is opened by a throwing or flipping motion of the hand.
The judgment is reversed and the cause remanded.
