State v. Grenz , 26 Wash. 2d 764 ( 1946 )

I cannot agree with the view of the majority that an enactment which defines a vagrant as one who wanders about the street at late or unusual hours of the night, unless such person is engaged in a visible or lawful business, is a valid exercise of the police power. In the majority opinion, it is stated that it was necessary for the state to prove beyond a reasonable doubt that appellant wandered about the streets at a late or unusual hour of the night without any visible or lawful business; and that the visible or lawful business in question is that which is concerned with the wandering of the accused about the street at a late or unusual hour of the night and has nothing to do with the accused's mode of making a living.

Conceding, for the sake of argument, that such an enactment as interpreted by the majority is constitutional, the rule imposed upon the state of sustaining the burden of proof has not been met in the case at bar. It is true that the state may punish one for an attempt to commit a crime, but the state may not punish one because he made preparation to commit a crime, which is the most that may be said concerning the circumstances on which appellant's conviction is based. There can be no such thing as an attempt to attempt to commit a crime (State v. Awde, 154 Wn. 463,282 P. 908) and the evidence in the case before us rises no higher than that.

That appellant was not engaged in any kind of business at the late hour when he was arrested, may be conceded. It may be admitted that the presence of the sack in his car and the place at which he was arrested indicated an intent or preparation to attempt to commit the crime of chicken stealing; however, there is no proof of any attempt to engage in an unlawful business. The fact that appellant made preparations to steal chickens and had intended to commit the crime if he had not been halted, does not prove that appellant was engaged or attempting to engage in an unlawful business.

The legislature has not the constitutional power to define as a crime the wandering about the streets at late or unusual hours of the night without being engaged in a visible or lawful business. Have we traveled so far along the highway of regimentation that an officious officer may accost a citizen at any time of the day or night and insist upon that citizen answering impertinent questions of the officer? Some are engaged in sedentary pursuits and others are so employed that they suffer from insomnia. Some of those persons in wooing Morpheus may depart from their hotel or home at a late hour at night and walk or wander a few miles along the streets of our cities or counties. If such person wore an old sweater, old trousers or overalls, a slouch hat and heavy-soled slippers, would he, while so wandering, be engaged in any lawful business visible to the scalp-hunting officer of the law? The suspicions of the officer would not warrant his holding you or me, or any other citizen, so endeavoring by tiring himself to defeat insomnia.

Suppose some one of our prominent officials or business men, on his return at a late hour from a banquet to his home, decides to walk or wander a while to clear his head and remove the smell of smoke and other aroma from his garments ere he returns to the bosom of his family. Such person would be a vagrant under the statute as construed by the majority, as he would not be engaged in any visible or lawful business. The person described would be wandering about the streets at a late or unusual hour of the night. The fact that the official or business man was earning his living lawfully as an official of the state or business man, may not be considered.

Appellant operated a chicken farm, which was a visible and lawful business. The fact that he wore dark overalls, buttoned to the neck, and was wearing dark gloves and rubber-soled shoes might create the suspicion that appellant was preparing to attempt to commit a crime. It is not at all strange that he had short pieces of heavy string and some clothes pins in his pocket, and that he had a flashlight. Many automobilists carry strings,drinking glasses, paper, flashlights, and tools of different kinds. The fact that appellant was stooped over with one hand outstretched toward the fence which parallels the south side of the avenue, might also arouse suspicion. It is not at all astonishing that appellant fled when the officers flashed their lights on him, in view of the fact that he had a large amount of money on his person and suspected, as you or I would suspect, that the occupants of the car following him intended to deprive him of his money.

Appellant was where he had a perfect right to be. The legislature is without authority to require adults to remain at home after the hour of curfew fixed by the legislature. All that was proved in the case at bar is that appellant was traveling in an automobile at a late hour of night toward a farm in which was poultry in coops a short distance from the road where appellant was apprehended. He may have intended, and he may have prepared, to steal those chickens, but no attempt was proved. That he was not engaged in any business of any kind at the time of his arrest, may be admitted; but, as in the case of one of our officials or business men who courted sleep by walking or wandering up and down the streets of our city, such official or business man would not be engaged in visible business of any kind either. Would there be a presumption that he was engaged in an illicit affair or unlawful business? By what authority would the prowling officer halt and interrogate such official or business man?

The reason why I roam the streets at night, I do not have to divulge to any officer. If by my refusal to answer his impertinent questions I may be taken into custody and held incommunicado until morning, then we have returned to the evil days of the sixteenth, seventeenth, and eighteenth centuries in England. Then a man financially poor whose dress was not suitable for the drawing room could be arrested and subjected to indignities because walking or riding at a late hour of the night, while a citizen whose position in life differed financially and socially from the other could stagger along the streets at any time of night or day without fear of molestation by the minions of the law.

At the time America was colonized, two hundred different crimes were punishable by death under English law. In the reign of Queen Elizabeth from 1558 to 1603 — she was of the House of Tudor — England had her national labor relation law and her office of price administration. Under the Tudors and the early Stuart kings, the legislation both as to prices one paid for food and clothing and wages payable to workmen was part of a scheme for the regulation of the poor, those who could not successfully combat the tyranny of England. Wages were regulated by law and could not be affected by the agreement of the parties. A combination of workmen to raise wages so fixed was as definitely illegal as a combination of employers to raise prices above the level fixed by statute. An individual workman was not free to refuse work offered to him. The ideas underlying these laws were approved as late as the early part of the eighteenth century. The purpose of the laws was to coerce and compel the poor to work and to be employed at the low scale of wages fixed by those who profited from their labor. The Elizabethan poor law and other prior and subsequent related laws of England, which some contend were aimed to relieve the impotent and educate the children of those who could not maintain themselves, and to provide work for the able-bodied, are the forerunners of the vagrancy statutes of this country. In an endeavor to coerce acceptance of wages fixed by law and to compel others who refused to work at all to accept employment, England enacted statutes classifying such poor persons as vagrants and authorized, merely on suspicion, their arrest and commitment as vagrants.

The iniquitous statute under which appellant was convicted was born of those evil statutes of the vile Tudors and sinful Stuarts.

Organized effort commencing in the eighteenth century to ameliorate the conditions of the poor culminated two centuries later in organization of powerful trade unions through which the workers as a unit seek to help the individual workman.

The judgment should be reversed and the cause remanded with direction to dismiss the action.