People v. Luechini — 136 N.Y.S. 319

Majority

p. 319

(75 Misc. Rep. 614.)

PEOPLE v. LUECHINI.

(Erie County Court.

February, 1912.)

Headnote

Vagrancy (§ 1*)—Elements of Offense—Statutory Provision—“Vagrant.”

A man clothed as a woman and having on a wig and slippers, who stands in the lobby of a theater with his face painted,' representing the “White Slave,” is not a vagrant within Code .Or. Proc. § 887, subd. 7, providing that a person is a vagrant who, having his face painted, discolored, covered, or concealed, or being otherwise disguised, appears in a road or public highway, or in a field, lot, wood, or inclosure.

[Ed. Note.—For other cases, see Vagrancy, Cent. Dig. § 1; Dec. Dig. § 1*

For other definitions, see Words and Phrases, vol. 8, pp. 7267-7269.]

•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from City Court of Buffalo.

Saviro Luechini was convicted of being a vagrant, and appeals.

Reversed, and fine remitted.

Merritt N. Baker, for appellant.

Wesley C. Dudley, Dist. Atty. (Clifford McLaughlin, of counsel), for the People.

The appellant has been convicted in the City Court of Buffalo of being a vagrant, as defined by subdivision 7 of section 887 of our Code of Criminal Procedure, which says:

“A person (is a vagrant), who, having his face painted, discolored, covered or concealed, or being otherwise disguised, in a manner calculated to prevent his being identified, appears in a road or public highway, or in a field, lot, wood or inclosure.”

p. 320

Said section 887 defines 10 varieties of vagrancy.- The general meaning of the word “vagrancy”.is well understood; and the whole import of this section, as I read it, is that a person^ to be convicted under any of its subdivisions, must be shown to be so situated or so conducting himself as to indicate either that he has no lawful, visible means of support, or that he is a menace to the health, safety, or morals of the community in his manner of supporting himself. Said section, which became a law in 1881, was derived from the statutes of 1845 and 1824. The wording of the statute of 1824, so far as material, is:

“All idle persons who, not having visible means to maintain themselves, live without employment; all persons wandering abroad and lodging in taverns * * * and not giving a good account of themselves; all persons wandering abroad and begging * * -* shall be deemed vagrants.” 1 Rev. St. (1st Ed.) pt. 1, c. 22, tit. 2, § 1.

Chapter 3 of the act of 1845 is the same as subdivision 7 of the present section 887, under which appellant was convicted, except that it provides that it must further appear that the accused person, after arrest, “cannot give a good account of himself.” These last words, while not found in subdivision 7 of section 887, appear in subdivision 6; and the theory of the whole section seems to me, as I say, to import non-' self-support by means that are improper and unlawful. Mere masquerading is not sufficient; and I cannot conceive that our Legislature, in the exercise of its police power, intended to declare such an act malum prohibitum, i. e., criminal in itself without proof of specific criminal intent.

There is no testimony in the case at bar that this appellant -was without proper means of support, or that he was in any way unable to account for' himself, or that he was menacing the public health, safety, or morals. To be sure, there is testimony that he was in front of some theater and that he “represented the ‘White Slave.’ ” This is not an attractive expression in these later days; and, if appellant were convicted under section 70 of the Penal Law (Consol. Laws 1909, c. 40) of some form of abduction, or under section 1148 of the Penal Law, as added by Laws 1910, c.' 382, of soliciting" for immoral purposes, or of aiding or abetting in the commission of either crime, a different proposition would confront me. However, the sole proof of any materiality is the testimony of Detective Newton, who says:

He “found this young man in front of the Grand Theater, 227 Main street, his face all painted up and this garb on (pointing to women’s clothes which were conceded by appellant to have been worn) and this wig on and slippers, * * * his face all painted up, and he said he was representing the ‘White Slave.’ * * * He was in the lobby of the theater, a depression same as any doorway, in view of the public.”

This comes far short, in my judgment, of bringing the appellant within the scope of the section mentioned. Some form of disorderly conduct might have been charged and proved; and, if this showhóuse was producing something unlawful, there was a proper way to put a stop to it. But under this slight testimony, if this conviction of this young man be allowed to stand, there is no reason why the disguised

p. 321

circus “barker,” the midway “ballyhoo,” or even the masquerader at the ball could not be convicted of vagrancy under this statute, each for having indulged in his own particular antics; and such a conviction, although perhaps it might be deemed righteous by many, would be going far beyond anything conceived by the Legislature.

There is no “white slavery” crime involved here, nor am I called upon to pass, even incidentally, upon the character of the entertainments furnished by any of our moving picture show houses, for there is no testimony produced on this question. Every law-abiding citizen is entitled to security under the law. Statutes penal in character should be strictly construe'd in favor of the liberty of the citizen. And, while the .hand of the law should fall promptly and fearlessly upon those who transgress its penal prohibitions, still that hand should as surely be withheld, except by way of assistance, from those who are not shown by sufficient proof to have violated the law as written.

I deem it unnecessary to comment on the other points raised by counsel for appellant.

The judgment of conviction is reversed, and the fine ordered remitted.

Judgment reversed, and fine remitted.