Commonwealth ex rel. Thompson v. Superintendent of House of Correction

58 Pa. Super. 465, 1914 Pa. Super. LEXIS 331

• Court: Superior Court of Pennsylvania
• Decided: November 16, 1914
• Docket: Appeal, No. 236
• Status: Published

Opinion

Audenried, J.,

filed the following opinion:

The relator was arrested on August 14, 1914, by a police officer on the charge of vagrancy. It was testified before the magistrate who heard the case that he was in the practice of soliciting alms on the public highways. The' magistrate adjudged him a vagrant and sentenced him to serve three months in the house of correction as provided by the act of May 8, 1876.

On the hearing of the writ of habeas corpus, under which he. was brought before this court, it clearly appeared, not only by the testimony of the commonwealth’s witnesses, but by the admission of the relator himself that the magistrate’s finding that he is a vagrant was warranted. As defined by the first section of the act of May 8, 1876, the term “vagrant” includes among others “all persons going about from door to door or placing themselves in the streets, highways or other roads to beg or gather alms.” For a considerable period extending up to the date of his arrest the relator, who is blind, day after day placed himself upon the streets of the city for the purpose of begging, or gathering alms from the charitably disposed, calling the attention of the passers-by to his pitiable condition by playing on a small hand organ that he carried suspended from his shoulders. In this way he made his living. Although repeatedly ordered by the police authorities to desist from this practice he persisted therein contending, as he still does, that because of his blindness he has, under the act of April 30, 1879, the right to go about from place to place begging. In this he is mistaken. The fifth section of the act of April 30, 1879, provides, it is 'true, that that act shall not apply to certain persons mentioned therein, including those who are blind, but it does not exempt those persons from the prohibitions contained in other statutes; and it has been decided by the Supreme Court that the act of May 8, 1876, has not been repealed or superseded, but still is in force: Cumberland County v. Boyd, 113 Pa. 52; Com. ex rel. Burnside v. Superintendent of House of Correction, 18 Pa. Dist. Rep. 601.

There is nothing in the suggestion that relator is entitled to be discharged because in committing him to the house of correction the magistrate failed to indicate that he was to be employed “at labor.” By the Act of June 2, 1871, sec. 7, P. L. 1303, it is provided that every person in the custody of the managers of that institution, not disqualified by sickness or casualty, shall be employed by the superintendent in quarrying stones, cultivating the ground, manufacturing such articles as may be needed for the prison, almshouse or other public institutions of the state or city, or in such other labor as shall upon trial, be found to be profitable to the institution and suitable to its proper discipline and the health and capacities of the inmates. A commitment to “serve in the House of Correction as provided for by the Act of May 8, 1876,” certainly provides as plainly as there is any need it should that during his term of confinement the relator shall be required to labor.

John N. Landberg, for appellant.

In the case at bar, the magistrate’s transcript shows a summary conviction and sentence of appellant, Thomas M. Thompson, to three months in the house of correction, and contains no reference to compulsory, manual labor, and this fatal error alone calls for a reversal and setting aside of the sentence: Com. v. Dean, 19 Pa. Dist. Rep. 534; Com. v. Scott, 25 Pa. C. C. R. 210; Cumberland County v. Holcomb, 36 Pa. 349; Vagrants’ Cases, 4 Pa. C. C. R. 615; Com. v. King, 2 Kulp, 386.

Defendant cannot be found guilty of vagrancy unless it be positively evidenced that he is able to work: Walters v. State, 52 Ga. 574.

The blind and crippled are exempt from prosecution: Act of April 30, 1879, P. L. 33.

It is submitted that those who have a fixed place of residence in the county are not subject to, and cannot be convicted under, either the Vagrancy Act of 1876 or the Tramp Act of 1879: Com. ex rel. v. Gill, 7 W. N. C. 557.

George W. Welsh, assistant district attorney, and Samuel P. Rotan, district attorney, for appellee, cited:

Com. ex rel. v. Superintendent of the House of Correction, 18 Pa. Dist. Rep. 601; Cumberland County v. Boyd, 113 Pa. 52.

November 16, 1914:

The commitment of the magistrate being in proper form and being warranted by the facts of the case, it is proper that the writ of habeas corpus should be dismissed and that the relator should be remanded to the custody of the superintendent of the house of correction to be held in accordance therewith.

Error assigned was the order of the court.

Per Curiam,

The judgment is affirmed and the relator is remanded.