State v. Levin

Langenbach, J.^†

— At 11:30 on a Saturday evening, appellant was seated in the back seat of an automobile in anticipation of witnessing a drag race on a straight country road. Is this status sufficient to support a charge of vagrancy? That is the question.

While on routine patrol on February 6, 1965, a deputy sheriff noticed a group of cars; since earlier in the week he had heard that a drag race was to take place, his curiosity was aroused. Shortly, the cars left the Walla Walla area, traveling towards the small town of Clyde. While he followed, he radioed for assistance. Another deputy and a state trooper responded. When the cars stopped (18 to 20 miles later) on a straight stretch of county road, the officers blocked the road on each side of the cars. They then asked for identification and drivers’ licenses. The appellant was in the back seat of an automobile owned by another. Forty-one persons, including minors, were taken to the station and arrested for vagrancy. A local ordinance sets the curfew for minors at midnight on weekends.

By stipulation, the appeals by appellant were to be representative of 24 others. Following a conviction of vagrancy in the justice court, he appealed to the superior court. In the superior court, he moved for dismissal at the close of the state’s case. When it was denied, appellant testified.

He stated that he was 33 years old, a wheat and chicken farmer, and interested in constructing and racing cars. On the night of his arrest, he had heard that a drag race was to be held, and went in a car with several others to watch. The superior court sustained his conviction of vagrancy under (7) and (8) of RCW 9.87.010. He then perfected his appeal to this court.

Appellant argued that (1) reasonable men cannot differ that the evidence shows that no crime was committed under the vagrancy laws; and (2) assuming arguendo that (7) and (8) are applicable, appellant cannot be constitutionally convicted of idleness and failure to explain his presence to the satisfaction of police.

The sections under which appellant was convicted are:

RCW 9.87.010. Vagrancy. Every—

(7) Lewd, disorderly or dissolute person; or,

(8) Person who wanders about the streets at late or unusual hours of the night without any visible or lawful business ....

Is a vagrant ....

The issue narrows as to whether the state sustained its burden of proving that appellant was a vagrant under either of these two sections.

The trial court found that appellant was “disorderly for going out there for the purpose of being a spectator and being a person in this crowd where he had no legitimate business.”

The state argued that the trial court properly concluded that appellant was a vagrant on authority of State v. Grenz, 26 Wn.2d 764, 175 P.2d 633 (1946). That case is not apposite as the evidence there showed that defendant had a criminal intent in being where he was at the time of his arrest, under the circumstances and conditions prevailing. (The defendant had been apprehended during an attempt to steal some chickens in the middle of the night.)

In the recent case of State v. Finrow, 66 Wn.2d 818, 820, 405 P.2d 600 (1965), this court defined “disorderly,” within (7), as set forth in Black, Law Dictionary (4th ed.): “Contrary to the rules of good order and behavior; violative of the public peace or good order; turbulent, riotous or indecent.”

“Disorderly” is a state of being which may be proven by a single act that reflects the thema of (7); i.e., “profligacy” or “depravity” in a person. State v. Harlowe, 174 Wash. 227, 24 P.2d 601 (1933). Accord, State v. Finrow, supra.

In the case at bar, no evidence of turbulent, riotous or indecent conduct was introduced. Even though appellant was riding in the back seat of an automobile in anticipation of watching an illegal drag race, he was hardly being profligate or otherwise “disorderly” within the vagrancy statute. Further, when the police accosted the appellant, along with everyone else, they were not committing any unlawful act. There was no testimony or proof of any conduct contrary to the rules of good order and behavior, or violative of the public peace or good order. The defendant was in a place where he had a lawful right to be. It would be a strange law indeed that condemned anyone who sits in an automobile as a vagrant. Even the minors were within the legal limits of the curfew. Even the remote county highway was not congested. There was no disorderly conduct.

The conviction is reversed and the prosecution dismissed. It is so ordered.

Rosellini, C. J., Donworth and Weaver, JJ., concur.

† Judge Langenbach is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution.