Ex Parte Harvey Karnstrom

249 S.W. 595, 297 Mo. 384, 1923 Mo. LEXIS 308

• Court: Supreme Court of Missouri
• Decided: March 3, 1923
• Status: Published

Opinion

DAVID E. BLAIR, J.

This is an original proceeding in this court by habeas corpus, whereby petitioner seeks to be discharged from the custody of the Sheriff of Jasper County, under commitment issued by a justice of the peace of Galena Township in said county, who sentenced petitioner, upon his conviction as a vagrant, to imprisonment in jail for six months and to pay a fine of one hundred dollars and the costs. The production of the body of the petitioner and issuance of our writ were formally waived, and the case is submitted upon the petition and upon briefs by petitioner’s counsel and the Attorney-General. This court fixed petitioner’s bail, pending the determination of this case, and he was released thereunder. The information under which peti tioner was convicted, with caption omitted, reads as follows :

“W. N. Andrews, Asst. Prosecuting Attorney within and for the County of Jasper, and State of Missouri, upon his official oath, informs the Justice that on or about the — day of June, 1922, in the Township of Galena, in the County of Jasper and State, of Missouri, Harvey Karnstrom did then and there unlawfully tramp and wander around from place to place without any visible means of support against the peace and dignity of the State.

“This information is based on the affidavit and complaint of W. N. Andrews heretofore filed with the Justice.

“W. N. Anueews,

“Asst. Prosecuting Attorney

“of Jasper County, Missouri.”

The affidavit referred to is identical in its charging part with the foregoing information, and purports to be signed by W. 1ST. Andrews arid sworn to by him before the justice of the peace on June 23, 1922.

The statute upon which said affidavit and information were based is Section 3581, Revised Statutes 1919, which reads as follows:

“Sfec. 3'581. Vagrants, who are. — Every person who may be found loitering'; around houses of ill-fame, gambling houses, or places where liquors are sold or drunk, without any visible means of support, or shall attend or operate any gambling devise or apparatus, or be engaged in practicing any trick or device to procure money or other thing of value, or shall be engaged in any unlawful calling whatever, and every ablebodied married man who shall neglect or refuse to provide tor the support of his family, and every person found tramping or %oandering aro%md from place to place without any visible means of support, shall be deemed a vagrant, and, upon conviction thereof, shall be punished by imprisonment in the county jail not less than twenty days, or by fine not less than ttvemly^ dollars, or by both such fine, and imprisonment.”

The portion of the statute put in italics by us is the only part'of said statute involved in this case.

I. The first contention of petitioner is best stated by quoting from his brief::

‘ ‘ First: That. the act of th,e Legislature of the State of Missouri, entitled: ‘An Act to revise and amend the Code of Criminal Procedure, declaring and defining P^lic offenses, prescribing punishments therefor and proceedings thereon,’ approved May 19, 1879, of which said Act, Section 3581, Revised Statutes 1919, is a section, is unconstitutional, null and void, and destitute of legal effect in this, that the same is in violation of Section 28, Article 4, of the Constitution of the State of Missouri, for the reason that said title expresses m> subject whatever.”

Section 28 of Article IY of the Missouri Constitution, omitting the exceptions therein stated, provides that no bill shall contain more than one subject, which shall be clearly expressed in its title.

Section 3581, Revised Statutes 1919, has come down to us in identical language through all the revisions of our statutes since* it first appeared as a new section in the statutes of 1879 as Section 1568 thereof. A revision of our criminal laws was made in 1879, and was published in the statutes of that year as Sections 1227 to 2119, inclusive, thus including said Section 1568.

Petitioner is not the first one to raise this question. The act was attacked in the case of State v. Brassfield, 81 Mo. 151, and it was there held that the act did not violate Section 28, Article IY of the Constitution and was not subject to the identical attack petitioner now makes against it. Henry, J., with the concurrence of all the judges, there said:

‘‘Chapter 24 of the Revised Statutes, commencing with Section 1227 and ending, with Section 2119, inclusive, was passed as one bill, and embraces the entire subject of crime and criminal procedure, and there is nothing in the point that the constitutional provision that the subject of each bill shall be ‘dearly expressed in its title and that no bill shall contain but one subject, was violated. [Art. é, seo. 28, Const.] There are no incongruous matter in Chapter 26, and the title of ‘ Crimes and Criminal Procedure’ olearly indicates what it contains. What are crimes and the procedure in criminal eases, are cognate subjects, and the definition of crimes and the procedure against persons accused of committing them, may very properly be embraced in one bill.”

The' Brassfield Case was cited with approval by this court in State v. Distilling Co., 236 Mo. 219, l. c. 261; St. Louis v. Weitzel, 130 (Mo. l. c. 615, and oilier cases. The eases cited by petitioner are all from states other than Missouri. We will not undertake to examine the varying constitutional provisions upon which those cases were decided, even assuming that they hold as petitioner contends. The rule laid down in the Brassfield Case is the settled law in Missouri. We, therefore, hold that this contention of petitioner is without merit.

II. Petitioner contends that the provision that “every person found tramping and wandering around from place to place without visible means of support,” in violation of Section 4 of Article II of the Missouri Constitution, in that said section attempts to penalize poverty, destitution and unavoidable dependency. Said section of the Constitution is as follows:

“That all constitutional government is intended to promote the general Welfare of the people; that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails of its chief design. ’ ’

The same constitutional provision was invoked in Ex parte Branch, 234 Mo. 466, in a habeas corpus case, wherein petitioner was imprisoned by reason of a conviction for vagrancy under the charge that he was found loitering around houses of ill-fame, gambling houses and places where liquors were sold and drunk, without visible means of support. It was therein held that the act in respect to the offense charged was constitutional when tested by Section 4, Article II. Roy, C., said:

“That law does not prohibit any one from being without visible means of support, or from being idle, or from loitering' around saloons or gambling houses. Neither one of those things in itself and alone can be punished as a crime, but when they all three meet in one person at the same time they constitute a vagrant, who bias been very appropriately described as ‘the chrysalis of every species of criminal.’ ”

The act does not penalize mere poverty, destitution or misfortune. Indeed, it says nothing whatever about poverty. The acts denounced are tramping or wandering from place to place, without visible means of support. Nor is one going from place to place seeking employment within its inhibition, although clad in rags and living in filth, if ...he is seeking to secure an honest livelihood. “Tramping” as used in the statute means moving about from place to place as a tramp or beggar without actual destination or honest purpose. “Wandering” means rambling here and there without any certain course and with no definite object in view. [Webster’s New International Dictionary; Ex parte Taft v. Shaw, 284 Mo. l. c. 549.]

These words exclude the class of persons, though destitute, who move from place to place with the definite purpose of securing honest employment, even though the source of their support is not visible. Following the reasoning of Ex parte Branch, supra, the law is not violated unless there is not only an idle, purposeless tramping or wandering from place to place, but also the failure to have any visible means of support. The contention is devoid of merit.

III. Petitioner contends that the clause of the act we are- considering violates the Fourteenth Amendment to the Federal Constitution and Section 32 of Article IV of the Missouri Constitution. The latter evidently was intended for Subdivision 32, Section 53, Article TV, which prohibits the Legislature from enacting local or' special laws where a general law can be made applicable. The Federal Constitutional provision is that provision of Section 1 of the Fourteenth Amendment providing that no State shall deny to anv person within its jurisdiction the equal protection of its laws.

Petitioner treats the two provisions together. His argument is that “said clause purports to penalize those who are ‘found tramping or wandering around from place to place,’ if they are without visible means of support, regardless of their health, regardless of their opportunity to secure employment, regardless of their motivéis, regardless of an honest effort to secure employment, said clause does not penalize those who reside continuously in one locality, who habitually, wilfully and persistently lead idle, useless and shiftless lives, and therefore, said clause does not apply equally to all classes and is not general and uniform in its operation and effect; the mere fact that a person is a wanderer, or one who tramos from place to place, furnishes no ground whatsoever for a legislative classification, and, therefore, said clause denies to that class who are found ‘wandering or tramping around from place to place,’ an equal protection of the law, with that class that resides continuously in one locality, and is also a special law in a case where a general law could and should be made applicable.”

We have already held that those who are unfortunate or destitute and who wander around from place to place, honestly seeking employment, do not come within the inhibition of the statute. There is a sound basis for classification between persons of fixed abode, who are without visible means of support, and those who are here to-day and there to-morrow. The former constitute less of a menace because their usual haunts and habits are known in the community, and if they are vicious, as well as idle and useless, the fact is well known and their actions and conduct are at all times under the watchful eyes of the peace officers. They are readily located when suspected of criminal acts.

But the wanderer, the vagabond, comes into the community, commits some depredation and is gone and no man knows where to look for him. The fact that he is without visible means of support and purposely tramping or wandering around the country, makes it likely that he will commit some crime unless he is at once driven away or proceeded against as a vagrant.

It is apparent that the entire section (Sec. 3581, R. S. 1919), is broad enough to include both those of fixed abode and wanderers if they are without visible means of support. Those who loiter around houses of ill-fame, etc., must have something in the nature of a fixed abode. The word “loitering” is used in the sense of tarrying, lingering or hanging around and contemplates something more than mere casual appearance or temporary presence at such places. The word “loiter” as used here expresses something rather in the nature of the habit of being present at such places. The other provisions of said Section 3581, except the last one, are apparently more applicable to those of fixed abode than to wanderers. The last provision, generally speaking, applies to those of roving and wandering habits,- without fixed abode, although not necessarily excluding those who have a fixed abode in the given community, if they tramp or wander around within a radius convenient to their usual abiding place. The statute applies equally to all persons in the same situation without mere arbitrary classification, and does not violate the provision of the Federal Constitution invoked. Petitioner relies on G. C. & S. F. Railway Co. v. Ellis, 165 U. S. 150, and Southern Railway Co. v. Greene, 216 U. S. 400. There is nothing in these cases with which anything we have said is out of harmony. Neither does said statute violate the provisions of our own Constitution against special laws.

IV. It is next contended that the information and affidavit fail to state any public offense or crime known to the law. They are in the same language and follow the statute. The information charges that defendant did unlawfully (that is, in violation of Sec-^on 3ggp) tramp and wander around from place to place without any visible means of support. Both information and affidavit use the word “wonder” instead of “wander.” We are not advised whether the information and affidavit were written with a pen or with a typewriter. In either event, the use of the word “wonder’ was clearly a typographical error. If written with a pen, the writer may have failed to bring down the final loop of the letter “a” sufficiently. However, it makes not the slightest difference if the pleader intentionally or ignorantly used the word “wonder.” The use of the term “tramped from place to place” is sufficient. The word “wonder” can be treated as surplusage. The statute uses the words “tramping’” and “wandering” in the alternative. It is an offense denounced by the statute either to tramp or to wander from place to place without visible means of support.

It is unnecessary to cite adjudicated cases on the proposition that an information, charging an offense substantially in the language of the statute and charging every element of the offense, as defined by the statute, is sufficient. [Kelley’s Crim. Law & Prac. (3 Ed.) sec. 187.]

Petitioner contends that the conduct of defendant in tramping' or wandering from place to place without visible means of support must be “a continuing offense and applies to a habitual course of conduct extending over an appreciable period of time.” The answer to this is the statute itself, which makes it an offense to be fomid tramping or wandering around, etc. There is no merit in this contention.

Y. It is charged that W. N. Andrews did not subscribe and swear to the complaint and that his signature to said complaint was written by another person out of his presence. There is nothing in the record showing such alleged fact and it is, therefore, unnecessary to consider its effect, if true.

Petitioner contends that the information is not verified and, therefore, is not sufficient. Section 3760, Revised Statutes 1919, makes provision for informations in the justice court founded upon or accompanied by a verified complaint, as was done in this instance. The information here is good without verification, even if it bad been filed originally in the circuit court, since it is supported by the affidavit of a person competent to testify as a witness in the case and is accompanied by such affidavit. [Sec. 3849, R. S. 1919.] There is nothing before us showing that Mr. Andrews, the assistant prosecuting attorney, was not such competent witness. He made the affidavit as of his own knowledge. "We must indulge the presumption that he was a competent witness.

VI. It is contended that the sentence imposed upon petitioner is in excess of that authorized by the statute, to-wit, imprisonment for twenty days and a fine of twenty dollars. These are the minimums fixed bv Section 3581. No maximum is fixed by this statute and such maximum, therefore, is fixed by the general provisions of Section 3700, Revised Statutes 1919. Both the imprisonment imposed and the fine assessed by the justice are within the máximums fixed by said section, to-wit, imprisonment for twelve months and a fine of one thousand dollars.

VII. Petitioner makes some point on the fact that the conviction occurred in the justice court and not in a court of record. That there is a difference in favor of the validity of judgments of courts of record may.be conceded. The information here is sufficient either in the circuit court or the justice court. The commitment is regular and shows that the defendant was convicted upon a trial by a jury before the justice, upon an information charging him with tramping around from place to place, without visible means of support. With the sufficiency of the proof to sustain such charge, we are not here concerned. The information was sufficient and the commitment is regular on its face.

VIII. Much of petitioner’s brief is taken up with citations and argument supporting the proposition that habeas corpus is the proper remedy where a person is confined upon a conviction under a void or unconstitutional statute or upon an information which charges no criminal offense. Such ... ■, • n • ni ± , , . is the rule m this State, but petitioner has not brought himself within such rule.

IN. The foregoing results in the conclusion that petitioner has not. shown himself to- be unlawfully restrained of his liberty, and it therefore results that he should be remanded to the custody of the Sheriff of Jasper County until- the terms of his commitment have been complied with and until he is entitled to his discharge in due course of law.

It is so ordered.

All concur, except Ragland, J., not sitting.