Commonwealth v. Ellis , 207 Mass. 572 ( 1911 )

Knowlton, C. J.

These two cases were argued together, and they present precisely the same questions. In each a complaint was made against the defendant under the R. L. c. 212, § 61, charging that he was “a person known to be a pickpocket and thief and then and there having no visible and lawful means of support and was then and there on said days and times aforesaid at Lowell aforesaid, found prowling around a certain railroad depot in said Lowell, whereby and by force of the statute in such case made and provided,” he “ was and still is a vagabond,” etc. A motion to quash was filed in each case, in which six reasons for the motion were stated.

The complaint is not bad for duplicity. It does not charge distinct offenses. The charge is of a continuing offense, and the time well might have been alleged as within a certain period beginning on a day named and ending on a later day named. But, in the form in which this complaint is made, the allegation sufficiently charges an offense on the first day of June, 1910, and the words, “ and on divers other dates and times at said Lowell,” add nothing to it. These words, and the later words, “ on said days and times aforesaid,” and also the words, “ and still is,” may be stricken out as surplusage. Commonwealth v. Sullivan, 5 Allen, 511. Commonwealth v. Gardner, 7 Gray, 494. Commonwealth v. Elwell, 1 Gray, 463.

The complaint is sufficiently certain. It follows the language of the statute, and in a case of this kind that is sufficient. Commonwealth v. Ashley, 2 Gray, 356. Commonwealth v. Dyer, 128 Mass. 70. Commonwealth v. Brown, 141 Mass. 78.

It is plain that the charge is of being a vagabond under the provisions of the R. L. e. 212, § 61, and not under the provisions of § 46 of the same chapter.

The defendants’ counsel have argued at length that the statute is unconstitutional, because of the nature of the allegations that together charge the offense. The statute makes certain conduct punishable, as producing in a man a condition and character that render him an objectionable member of society, whose acts and influence are detrimental to the community. To convict him under this section, it must be shown that he was found prowling around one of the public places mentioned in the statute, and that he was doing this while having no visible and lawful means of support. It must also be shown that he was a person known to be a pickpocket, thief or burglar. His prowling around a public place is active conduct for which he is directly responsible. So too in ordinary cases, in k less marked degree, is his having no visible or lawful means of support. These are matters of conduct and behavior. When they coexist in a person known to be a pickpocket, thief or burglar, they constitute an offense for which he well may be subjected to punishment. The commission of the previous crimes referred to in the statute does not constitute a misdemeanor for which he may be prosecuted. To a certain extent they are indications of present character, and they serve to give color to conduct that otherwise might be less pronounced in its indications. That the previous commission of crimes may be considered in determining the punishment to be imposed, and in the creation of certain kinds of statutory offenses, without rendering a statute an ex post facto law, has repeatedly been adjudged. McDonald v. Commonwealth, 173 Mass. 322. Commonwealth v. Graves, 155 Mass. 163. Sturtevant v. Commonwealth, 158 Mass. 598. Commonwealth v. Phillips, 11 Pick. 28. Plumbly v. Commonwealth, 2 Met. 413. Tuttle v. Commonwealth, 2 Gray, 505.

The defendant in each case filed a motion for a bill of particulars and appealed from an order denying it. In the substantive part of the motion he merely “ demands that a bill of particulars be furnished him in accordance with his rights under the Revised Laws.” If he had pointed out any part of the complaint, about the meaning of which he was uncertain and needed information to enable him to prepare his defense, doubtless the court would have ordered the filing of specifications. He might have needed to be told what railroad depot was referred to in the complaint, or what were the particulars of the knowledge that he was a pickpocket and thief; but it does not appear that he needed or desired information of this kind.

The defendants’ “rights under the Revised Laws” entitle them to a bill of particulars only when “ the charge would not be otherwise fully, plainly, substantially and formally set out,” or when it is “ necessary to give the defendant and the court reasonable knowledge of the nature and grounds of the crime charged.” R. L. c. 218, § 39. Commonwealth v. Snell, 189 Mass. 12,19.

Judgment and orders affirmed.