State v. Duggan , 1971 Minn. LEXIS 1049 ( 1971 )

192 N.W.2d 185 (1971)

STATE of Minnesota, Respondent,
v.
Shirley L. DUGGAN, Appellant.

No. 42889.

Supreme Court of Minnesota.

November 19, 1971.

Lais, Jacobowski & Bannigan, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., William B. Randall, County Atty., Daniel A. Klas, City Atty., Pierre N. Regnier and Daniel L. Ficker, Asst. City Attys., St. Paul, for respondent.

Heard before KNUTSON, C.J., and MURPHY, OTIS, ROGOSHESKE, and HACHEY, JJ.

OPINION

MURPHY, Justice.

Defendant appeals from a judgment of conviction of violation of St. Paul Legislative Code, § 470.03, which provides:

"No person shall loiter or lurk on the streets, or in a public place, or in a place open to the public, with intent to solicit for the purpose of prostitution or any other act prohibited by law."

Because the state has failed in its proof to establish the essential element of intent to commit the offense, we reverse. We said in State v. Armstrong, 282 Minn. 39, 42, 162 N.W.2d 357, 360 (1968):

"* * * Whatever the arguable ambiguity or generality as to the element of ``lurking' or ``loitering,' there is none whatever as to the element of intent. The element of intent gives meaning to the element of lurking or loitering and is a rational basis for proscribing such acts as harmful conduct. Both elements of the offense must, of course, be proved. The overt act of lurking or loitering, standing alone, is not made punishable by the provisions of the ordinances under which defendant was charged. An unlawful intent, without more, is not made punishable."

There is no evidence in the record of prior offenses, prior unlawful conduct on the part of defendant, nor of reputation or actual solicitation which would support the conviction. From an examination of the record, it appears that the conviction rests largely upon the suspicion of the arresting officer.

Reversed.