Brief for the Petitioner — Arceneaux v. Louisiana

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1963

= _

No. 76

~~ ee 4X

Petit

] SIANA,

Pi } N S FOR WRIT } RAR TO Hi

SIANA SUP! KI

INDEX

SUBJECT INDEX

Page

Brier ror Petir:oner

Opinions Below ...... capeudehgperseeipasstanetiaiewean aie ullsegiakenen 1

NINN sii dicctanaccictscesnccnamertcannscieneedisabincotdss. eatcaaues 2

Constitutional Provisions and Statutes Involved ....... 2

RUS eI Lannea cciceceeeeceenc ticcccemeneees es 4

eae tt GN ND a area 4

TY GF FORUI Ao 8

SII © posse ctciedas gun sess redetbsaeaelavaen areeiotandcibensanddesasonaaton 9

SII eespescccdhccmcieeciccolendae eenstonaaseanentn emote 26

I ha a ee aeons 27

Avtuoritiges CitTEp

CASES:

Aero Transit Co. v. Commissioners (1947), 332

U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99 .................... 17

Albertson v. Millard (1953), 345 U.S. 242, 73

S.Ct. 600, 97 L.Ed. 983 ...................... aN 17

Bead vy. District of Columbia (1952), 201 F. 2d

BE hikari coceceramhntaoniech ncn madiademadecine ns 12

Bolling v. Sharpe (1954), 347 U.S. 497, 74. S.Ct.

SN I I Sesscscctrceocc tue es hwinctee oLcncmtane 22

Champlin Refining Co. v. Commission (1932),

286 U.S. 210, 52 S.Ct. 559, 76 L.Ed. 1062 ............ 14

Connally v. General Construction Co. (1926), 269

U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 ............ 13, 14, 15

Cramp v. Board of Public lustruction of Orange

County (1961), 368 U.S. 278, 83 S.Ct. 279, 7

BN I chests ccc aco cl te LL A 14,15

Hartford Steam Boiler Inspection and Insurance

Co. v. Harrison (1937), 301 U.S. 459, 57 S.Ct.

CR GE BS Se a hece rstticectedeke Sees etndte 22

INDEX

Hebert v. Louisiana (1926), 272 U.S. 312, 47 S.Ct.

Sr I aaa

Henry v. United States (1959), 361 U.S. 98, 80

a cpnndmisl nashiives

Hernandez v. State of Texas (1954), 347 U.S.

475, 74 S.Ct. 667, 98 L.Ed. 866 .....000000000........

Herndon v. Lowry (1937), 301 U.S. 242, 57 S.Ct.

I I ca

International Harvester Co. v. Kentucky (1914),

234 U.S. 216, 345 S.Ct. 853, 58 L.Ed. 1284 ........

Kingsley Pictures Corp. v. Regent (1959), 360

US. 684, 79 S.Ct. 1362, 3 L.Ed. 1512 ..............

Lanzetta v. New Jersey (1939), 306 U.S. 451, 59

en Ae CE a ee

Louisville Gas and Electric Co. v. Coleman

(1928), 277 U.S. 32, 48 S.Ct. 423, 72 L.Ed. 770 ..

Lovell vy. Griffin (1938), 303 U.S. 444, 58 S.Ct.

Re I ON ir asnntntcebonsenncneesoree

McNabb v. United States, 318 U.S. 332, 63 S.Ct.

a CU RS cat erretees

Morey v. Doud (1957), 354 U.S. 457, S.Ct. 1

Skirtotes v. Florida (1941), 313 U.S. 69, 61 S.Ct.

UU ao a eeceace

State v. Antoine (1938), 189 La. 619, 180 So. 465

State v. Bentley (1951), 219 La. 893, 54 So. 2d

ARCS Se Ue rd al

State v. Clement (1946), 194 La. 395, 193 So. 685

State v. McCormack (1917), 142 La. 580, 77 So.

I Fan ae ea a eo

State v. Richardson (1932), 175 La. 823, 144 So.

NERS tA AE REN ORR IIE ee cee

State v. Rock (1926), 162 La. 299, 110 So. 482 ....

State v. Sanford (1943), 203 La. 961, 14 So. 2d

og ER LEIS SO OAL PAT ADE Ce OEE CEILS NE CELSO

State v. Sinigal (1915), 138 La. 469, 70 So. 478 ..

State v. Solomon (1952), 222 La. 269, 62 So. 2d

tr oR RRL ese <n IARI ie Ss ORS Sx SO Cn EEA

State v. Stahl (1959), 236 La. 362, 107 So. 2d 670

State v. Westmoreland (1913), 133 La. 1015, 63

SAPD ARS ale hae i Re Ra ears tae

ESI OAT II

20,

19

19

INDEX iii

State v. Williams (1931), 173 La. 1, 136 So. 68 .... 11

Stromberg v. California (1931), 283 U.S. 359, 51

Si RE Me Oe FG |): Es omueeeeemmre ere 14

Thornhill v. Alabama (1940), 310 U.S. 88, 60

A Be Ne Rs II isinictcctnccstecctnscctoneperetecsinns 14

United States v. Burnison (1950), 339 U.S. 87,

To BAX. Be ........... (Salat ss CRRA So | td OD 17

United States v. Cardiff (1952), 344 U.S. 174, 73

ak ae RI Um ee eee 14

Upshaw vy. United States, 335 U.S. 410, 69 S.Ct.

a I I oa erechrccenepe ticvnisvirteentose 25

Winters v. New York (1948), 333 U.S. 507, 68

hc inna cichckbtieseeseneseen 14, 15, 17

Wolf v. Colorado (1949), 338 U.S. 25, 69 S.Ct.

tet Tae Rg BR hae BBS le. 0 SORIA Oe 20

CONSTITUTIONS AND STATUTES:

United States Constitution, Fifth Amendment .. 9,18

United States Constitution, Fourteenth Amend-

ERR R Ee Ns Rte! RSA CIO ee men odere 2, 4, 8, 15, 17

Louisiana Constitution

I ccs sremscckcp si teencanseivers 19

pe a ene meer 2,8

pO ag EE Ea ee ere eee 2

I ie PD OO a ocinecemnensennnetvnanscenenntio® 2

eI acta ies seine dani twmrunnciicnanlonis 3

OR SS |b: ee een St Se 11,17

RR TEI) recess wcinachstepeiatiaciaentsncecnisic 2, 9, 17, 26

I I nace eicshtemernens 3, 23

a cand 3,6

a I I os cnaespnnicosoennieisainonnionanone 3, 8

ee cdcndeinnclnusietaans ®

NE Si sR RRECAIrc rw e CEOR Le NE 3,7

EOE nee 3, 6, 25

A RE eR ence. eee nee ieeedd 6

CS SN AERO 3,7

Be ESA acl Nae ee enn 3, @

8

I oe + ae 1

j INDEX

ISCELLANEOUS:

91 C.J.S. 778, Vagrancy, Section 1 20... 16, 20

37 N.Y.U. L.Rev. No. 1, pp. 102-136, “The Va-

grancy Concept Reconsidered: Problems and

Abuses in Statute Criminology” — 000000... 20

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1963.

No. 76

Siwney ARCENEAUX,

Petitioner,

vs.

LovlIsIANA.

BRIEF ON PETITION FOR WRIT OF CERTIORARI TO THE

LOUISIANA SUPREME COURT

BRIEF FOR PETITIONER

Opinions Below

The Louisiana Supreme Court ruling complained of by

petitioner consists of a denial of petitioner’s application

for writs of habeas corpus and for writs of certiorari, man-

damus and prohibition rendered on March 16, 1962, en-

titled State of Louisiana v. Sidney Arceneauz, bearing

Louisiana Supreme Court docket number 46,064, and read-

ing in its entirety: “Writ refused. There is no error

of law in the ruling complained of.”, appearing at page 1

of the transcript of record. Tunis application was made in

respect to the ruling of the Fifteenth Judicial District

Court, Parish of Lafayette, Louisiana, dated March 8,

1962, whereby said court summarily denied, without hear-

ing, petitioner’s application for a preliminary examina-

tion and alternatively for writ of habeas corpus, which

ruling appears at pages 31-33 of the transcript of record.

Statement of Jurisdictional Grounds

The matter before the Court involves a final judgment

or decree of the Highest Court of Louisiana, i.e., Louisiana

Supreme Court, rendered on March 16, 1962, refusing to

petitioner writs of habeas corpus, certiorari, mandamus and

prohibition, in which application the validity of Louisiana

Revised Statutes, Title 14, Section 107, was drawn in ques-

tien as being repugnant to the Fourteenth Amendment to

the United States Constitution. This application was de-

nied and thus the validity of the State statute was —

by the Louisiana Supreme Court.

The jurisdiction of this Court was invoked under the

provisions of United States Code, Tifle 28, Section 1257 (3)

and petitioner’s application for writ of certiorari was

granted on February 18, 1963.

Constitutional Provisions and Statutes Involved

The Fourteenth Amendment to the Constitution of the

United States;

Louisiana Constitution, Article 7, Section 10;

Louisiana Constitution, Article 7, Section 42;

Louisiana Constitution, Article 7, Section 83;

Louisiana Revised Statutes, Title 14, Section 107;

Louisiz.na Revised Statutes, Title 15, Section 49;

Louisiana Revised Statutes, Title 15, Section 50;

Louisiana Revised Statutes, Title 15, Section 52;

Louisiana Revised Statutes, Title 15, Section 53;

Louisiana Revised Statutes, Title 15, Section 54;

Louisiana Revised Statutes, Title 15, Section 59;

3

Louisiana Revised Statutes, Title aoa 60;

Louisiana Revised Statuies, Title 15, ion 62;

Louisiana Revised Statutes, Title 15, Section 70;

Louisiana Revised Statutes, Title 15, Section 77;

Louisiana Revised Statutes, Title 15, Section 78 ;

Louisiana Revised Statutes, Title 15, Section 79;

Louisiana Revised Statutes, Title 15, Section 80;

Louisiana Revised Statutes, Title 15, Section 81;

Louisiana Revised Statutes, Title 15, Section 91 :

Louisiana Revised Statutes, Title 15, Section 92;

Louisiana Revised Statutes, Title 15, Section 113;

Louisiana Revised Statutes, Title 15, Section 121;

Louisiana Revised Statutes, Title 15, Section 123;

Louisiana Revised Statutes, Title 15, Section 127;

Louisiana Revised Statutes, Title 15, Section 128;

Louisiana Revised Statutes, Title 15, Section 130;

Louisiana Revised Statutes, Title 15, Section 131;

Louisiana Revised Statutes, Title 15, Section 132;

Louisiana Revised Statutes, Title 15, Section 134;

Louisiana Revised Statutes, Title 15, Section 135;

Louisiana Revised Statutes, Title 15, Section 137;

Louisiana Revised Statutes, Title 15, Section 154;

Louisiana Revised Statutes, Title 15, Section 340;

Louisiana Revised Statutes, Title 15, Section 321;

Louisiana Revised Statutes, Title 15, Section 323;

Louisiana Revised Statutes, Title 15, Section 341.

Questions Presentec

1. Does a State statute which renders persons guilty of

vagrancy “who are found in’or near any structure, movable,

vessel, or private grounds, without being able to account

for their presence therein” meet the safe-guarding stand-

ards of the due process and equal protection clause of, the

Fourteenth Amendment to the Constitution of the United

States? ;

” 2. Does an illegal arrestyand imprisonment carried out

and maintained by State officials in violation of a prisoner's

constitutional and statutory rights and the subsequent de-

nial to the prisoner by State judicial officials of a State

statutory right to preliminary examination and habeas

corpus in respect thereto affect the right of the State to

prosecute?

Statement of the Material Facts

On the evening of January 25, 1962, as darkness settled

about his one-room shack, petitioner was arrested by four

Deputy Sheriffs of Lafayette Parish, Louisiana.’ These

officers had no warrant for his arrest. They advised him,

however, that they were arresting him in consequence of

the oral request of the owner (one Meus Lagneaux) of the |

premises where petitioner lived, who, they informed peti-

tioner, had told them petitioner was trespassing.

The occasion for petitioner's presence on these premises

antedated his arrest. In April, 1961 he had been hired by

* These uncontradicted facts are found in petitioner's application

for writs to the Louisiana Supreme Court. transcript of record

pp. 4-16, and Exhibit A attached to his application consisting of

petitioner's affidavit found at pp. 17-20 of the transcript of the

record.

5

Meus Lagneaux as a farm laborer. He was to receive

wages of $4.00 a day and furnished with food and lodging.

The lodging furnished by his employer consisted of a one-

room structure approximately 8 x 10 feet in size, which con-

tained in the aggregate one bed, one electric light, and a

wash-basin.

His wages were paid for the first month, but thereafter

discontinued for reasons best known to his employer. Be-

cause of his impecunious condition and utter illiteracy,

while timorously but vainly periodically requesting pay-

ment of his wages, petitioner continued working for his

employer in virtual peonage. Then, on January 16, 1962,

a di-»ute arose between petitioner and his employer, dur-

ing vhich petitioner again requested payment of his wages.

His employer not only refused to make payment, but

ordered petitioner to leave his premises. Petitioner ex

pressed his intention to abide by his employer’s wishes and

then requested permission to leave his meager personal

belongings in his room, while petitioner went to New Or-

leans, where his sister lived, in search of work. His em-

ployer consented.

Impaired by his tack of skill and utter illiteracy, peti-

tioner was unable to secure employment in New Orleans

and, on January 25, 1962, returned to Lafayette Parish.

On his return, however, he obtained employment on an-

other farm situated in the neighborhood of his former em-

ployer. He was instructed by his new employer to appear

the following day to start work. By then the day was draw-

ing to a close. He visited a friend in an effort to borrow

two or three dollars so as to enable him to buy something

to eat, but was unsuccessful. At approximately 5:30 o'clock

of that evening he appeared at his aforesaid room to gather

his personal belongings. Upon entering, he turned on the

one light in the room. Within a few minutes after he had

entered his room, the four arresting officers (one of whom

6

—Murphy Lagneaux—was his former employer’s son)

rapped on the door of his room and his arrest followed.

Petitioner was taken to the Parish Court House and

there locked behind bars. The following morning the

Assistant District Attorney gave written authorization

to a Deputy Sheriff to file a charge of vagrancy against

him. These State officials then went through the hollow

formality of causing a warrant for petitioner’s arrest to

issue. Thereafter they took no further action in respect to

petitioner’s incarceration, though required to do so by the

mandatory laws of Lowisiana,’ and in fact petitioner was

kept incommunicado until February 26, 1962.

On February 27, 1962 petitioner’s counsel presented to

the State District Court an application for preliminary

examination,’ and, alternatively, for a writ of habeas cor-

pus. The District Judge signed the order granting pre-

liminary examination and habeas corpus hearing, both to

be heard on March 8, 1962.

After the District Judge called up these proceedings for

hearing, the Sheriff while in open court extracted from his

pocket the aforesaid “warrant”, whereupon the Court sum-

marily denied habeas corpus, though said Sheriff had never

made response te petitioner's petition as required by Louisi-

— 7

*L.S.A.-R.S. 15:80 provides: “When any person shall have been

arrested without a warrant, the peace officer, after he shall have

caused him tobe booked, shall bring him, without unnecessary

delay, if the charge be such as to entitle the accused to a prelim-

inary examination, before the Judge having authority to sit as a

committing magistrate in the case, otherwise, before the Judge

having trial jurisdiction thereof.”

* Under the provisions of L.S.A.-R.S. 15:154 before a bill of

information is filed or a bill of indictment found, an accused as

a matter of right is entitled to a preliminary examination that will

determine the existence of probable cause for his arrest and in-

carceration, under which procedure the State has the burden of

producing proof showing such a probable cause. All evidence

adduced at such a hearing must be reduced to writing and must

be under oath. L.S.A.-R.S. 15:155.

7

ana law.* The District Attorney then moved orally for a

continuance of the preliminary examination, alleging that

he had not been served, and although Louisiana law does

not require that he be served, but does require that all mo-

tions for continuance be in writing,’ the Court continued

preliminary examination until the following day.

When petitioner was called for prelishinary examination

on March 9, 1962, the District Attorney filed a document

entitled “Answer”,’ wherein he alleged that he had, on that

same day, filed a bill of information charging petitioner

with the offense of vagrancy. Although the order of Febru-

ary 27 had granted the preliminary examination at a time

when the Court had no discretionary power in respect

thereto,’ and the “Answer” did not ask that such order

be recalled or revoked, but prayed instead that the pre-

liminary examination be denied, the,Court thereupon re-

called and revoked its previous onder and refused to per-

mit petitioner a preliminary examination. Petitioner was

*L.S.A.-R.S. 15:127 provides: “lie person on whom a writ of

habeas corpus shall have been served, whether it be directed to

him or not, shall at the time and place designated in the writ,

produce the relator and make a written return to said writ.”

*L.S.A.-R.S. 15:321 provides: “Every application for a continu-

ance shall be by written motion alleging specifically the grounds

upon which it is based. The allegations of the motion when made

on behalf of the accused, must be sworn to by him or his counsel.”

15 :323: “Every motion for a continuance shall be tried sum-

marily and contradictorily with the opposite party, and unless the

evidence shows to the satisfaction of the Court that mover is en-

titled to a continuance, the Court shall order the trial to be pro-

ceeded forthwith.” .

* See transcript of record, p. 30. in which the District Attorney

significantly does not deny the affirmative allegations of petitioner's

application that his incarceration was without support in law or

fact but merely recites that the District Attorney had filed a bill

of information against petitioner on March 9, 1962, bearing date

for petitioner’s application for preliminary examination and habeas

corpus.

7 See footnote 3 and statute referred to therein.

8

then remanded to jail, where he had been continuously from

the date of his arrest and remained, because he was too

poor to post an appearance bond.

Invoking the jurisdiction of the Louisiana Supreme

Court, imposed upon it by Article 7, Section 10 of the

Louisiana Constitution, and by L.S.A.-R.S. 15:113 and

15:114, petitioner’s counsel filed his application for writs

of certiorari, mandamus and prohibition and for a writ of

habeas corpus, complaining generally of a denial of peti-

tioner’s civil rights and challenging the constitutionality

of the vagrancy statute on which the Stete oflicials relied

for petitioner’s incarceration.” Following the denial of

this application, petitioner applied for writ of certiorari to

this Court, which application was granted on February 15,

1963.

Summary of Argument

It is petitioner’s contention that the vagrancy statute of

Louisiana is unconstitutional in two major respects:

1. It is so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its appli-

cation and therefore it does not inform what is commanded

or prohibited by the State under its terms, in consequence

of which it denies to petitioner due process contemplated

by the Fourteenth Amendment.

2. It denies to petitioner and those similarly situated the

equal protection of State laws and thus further violates the

guaranties of the Fourteenth Amendment in that

a. It creates an unreasonable classification and

singles out those falling within the classification for

* See transcript of record, pp. 7-22.

Re ot IES Ae Oe te

9

different treatment, in respect to which there is no

reasonable basis to support the contention that those

falling within the classification are potential criminals

or that their mode of life breeds criminal conduct.

b. It seeks to proscribe and punish a condition or

status as opposed to a defined conduct, as a result of

which petitioner and those similariy situated do not

stand on an equal footing with other citizens of

Louisiana. S

c. It further denies to petitioner legal rights, e.£g.,

the presumption of innocence, and the privileges of the

Fifth Amendment.

3. The denial by State officials of the multiple legal

rights secured to petitioner by the Jaws of Louisiana ren-

ders his arrest and inearceration void ab initio as being

contrary to constitutional due process and equal protection.

ARGUMENT

(a) Statute is void for vagueness.

Vagrancy has been a State offense in Louisiana since

1855. State v. Westmoreland (1913), 133 La. 1015, 63 So.

502. The crime of vagrancy as materially relates to the

case at bar is defined by Louisiana Revised Statutes, Title

14, Section 107, as amended by Act 454, Section 1 of 1952,

in these words:

“The following persons are and shall be guilty of

vagrancy :

s * * * .

(8) Persons who are found in or near any structure,

movable, vessels or private grounds, without being able

to account for their lawful presence therein;

J

10

Whoever commits the crime of vagrancy shall be

fined not more than $200 or imprisoned for not more

than nine months, or both.”

The criminal charge filed against petitioner was based

upon this statute. It is petitioner’s contention that the stat-

ute is void for vagueness.

The ambiguity and consequent broad reach of this crime

is patent. In the first instance, it obviously invests police

officers with authority not otherwise enjoyed by them. In

such cases they are empowered to act as arresting officer,

judge and jury in determining whether or not the person

accused has given an acceptable accounting of his presence.

It is a gimmick by which police officers are empowered to

circumvent the sanctions of lawful arrest, in that under

such a statute, arrest may occur or not as the whim of the

arresting officer may dictate. Such an anomalous circum-

stance exists simply because the statute provides for no

safeguards or criteria by which the meaning of the statute

may be determined.

The phrase “without being able to account for their law-

ful presence” is subject to a variety of interpretations by

men of common intelligence There is no indication from

a reading of this statute that this phrase relates to the

physical cr mental ability of a person to account for his

lawful presence. Obviously a person suffering from shock

or being seized by sudden and disabling physical ailment

while walking along public walkways near a building would

be a person unable to account for his lawful presence within

the meaning of the statute and thus could be imprisoned

for conduct over which he had no control. Similarly, a

mental incompetent or a deaf and mute person would be

unable to account for his lawful presence under such cir-

cumstances.

11

The meanings of the word “account” indicated in dic-

tionaries are numerous and varied. And unlike most states

a common law meaning of crimes cannot in this case be

called in aid of a determination of the meaning of the

words used in this statute, inasmuch as in Louisiana no

act or conduct, however reprehensible, is a crime unless it

is defined and made a crime clearly and unmistakably by

statute. State v. Sanford (1943), 203 La. 961, 14 So. 2d

778; State v. Williams (1931), 173 La. 1, 136 So. 68; State

v. Clement (1946), 194 La. 395, 193 So. 685; L.S.A.-R.S.

14:7. But even should it be conceded that the consensus

concerning the meaning of the word “account” is to the

effect that it is a statement or explanation of one’s activi-

ties, that meaning itself is ambiguous. What explanation

is contemplated by the statute? Does this statute speak

of philosophy, law, sociology or custom? An explanation

philosophically sound may offend prevailing custom or

vice-versa. Similarly, an accounting meeting the highest

standards expounded by modern sociologists may be legally

impermissible.

Explanations of human activities are as various and di-

versified as are human beings. A unter may be found

near private grounds in search of his hounds, a beggar in

pursuit of something to eat, an artist because he seeks to

capture the scenery on canvas. Would the giving by these

‘ persons of such an explanation for their presence consi-

tute a proper accounting if they were there at 6 a.m.?

1 p.m.? 8 p.m.? 11 p.m.? 2 a.m.? 4 a.m.? Would a pro-

spective purchaser found near a structure or private

grounds be deemed a vagrant under this statute if he

explained his presence as being for the purpose of pur-

chasing either the structure or private grounds to build a

multi-million dollar factory that would create jobs for

three hundred families? Or to purchase it for the purpose of

operating a house of assignation? Or to purchase it for

4

12

the purpose of gaining entrance to an adjoining bank in

order to burglarize it?! Would a person found in or near

any structure, movable vessels, or private grounds be a

vagrant if he were to explain his presence by stating that

he was enjoying his liberty as an American citizen? Bead

v. District of Columbia (1952), 201 F. 2d 177.

Obviously the answers to these questions are multitu-

dinous in count and equally variant in nature. There are

no standards by which definitive meanings may be im-

parted to the words used nor are there limits established

beyond which their meanings may not travel. Consequently,

the practical implementation of this penal statute of ne-

cessity is effected accordingly as the propensities for good

or evil of those charged with its enforcement may induce

them to action. As a result, the moral strictures of a

benevolent tyrant or the depravity of an evil doer equally

may be accommodated and the liberty of the individual

immolated on the fiat of arbitrary police action.

The accounting required by the statute is further com-

plicated by the fact that it must be related to a person’s

“lawful” presence. Thus, in accounting for his presence,

a person is required to be able accurately to interpret all

existing laws in relationship to his presence, in order to

exculpate himself from the catchall net of this vagrancy

statute. Even then there is the risk that his interpretation

of the law, though correct, may not conform to that of the

court which tries him for vagrancy.

Thus it is that under the statute in question a person is

required at peril of his liberty to speculate as to the mean-

ing of this yenal statute. This statute does not inform what

the State commands or forbids. The status or act sought

to be denounced is couched in terms so vague that men of

common intelligence must necessarily guess at its mean-

ing or differ as to its application. And for that reason it

13

operates to deny liberty without due process and is uncon-

stitutional.

The applicable rule is stated in Connally v. General Con-

struction Co. (1926), 269 U.S. 385, 391, 46 S. Ct. 126, 70

L. Ed. 322:

“That the terms of a penal statute creating a new offense

must be sufficiently explicit to info hose who are

subject to it what conduct on their @&rt will render

them liable to its penalties, is a well-recognized re-

quirement, consonant alike with ordinary notions of

fair play and the settled rules of law. And a statute

which dither forbids or requires the doing of an act

in terms 80 vague that men of common intelligence

must necessarily guess at its meaning and differ as to

its application, violates the first essential of due proc-

ess of law.”

The import of the statute under consideration is legaliy

indistinguishable from the statute considered by the Court

in Lanzetta v. New Jersey (1939), 306 U.S. 451, 59 S. Ct.

618, 83 L. Ed. S88. In Lanzetta the Court had for considera-

tion the challenge that a New Jersey statute was void for

vagueness. In so many words the statute made it a crime

to be a gangster, which status was defined to be a person

not engaged in any lawful occupation, known to be a mem-

ber of any gang consisting of two or more persons who

had been convicted of an offense. The Court exhibited

no difficulty in arriving at the conclusion that such a statu-

tory provision was ambiguous and therefore unconstitu-

tional. The language of this statute was tested by the rule

of Connally and was found grossly wanting. The statute

was unmasked by the Court in these words (page 458) :

“The challenged provision condemns no act or omis-

sion; the terms it employs to indicate what it purports

14

to denounce are so vague, indefinite, and uncertain

that it must be condemned as repugnant to the due

process clause of the Fourteenth Amendment.”

Pointedly, the Court further observed:

“No one may be required at peril of life, liberty or

property to speculate as to the meaning of penal stat-

utes. All are entitled to be informed as to what the

State commands or forbids.”

The validity of the provision of any statute must be

tested on the basis of the terms employed. Connally v.

General Construction Co., supra. It is the statute, not the

accusation, that may be brought under it which prescribes

the rule to govern conduct and warns against transgres-

sion. Stromberg v. California (1931), 283 U.S. 359, 368;

S. Ct. 532, 75 L. Ed. 1117; Lovell v. Griffin (1938), 803 U.S.

444, 58 S. Ct. 666, 82 L. Ed. 949. And these statutes must be

couched in such terms and language as t& make the offense

sought to be denounced sufficiently explicit so that men

of common intelligence will understand what is prohibited

or commanded. Champlin Refining v. Commission (1932),

286 U.S. 210, 52 S. Ct. 559, 76 L. Ed. 1062; Stromberg v.

California, supra; Herndon v. Lowry (1937), 301 U.S.

242, 57 S. Ct. 732, 81 L. Ed. 1066; Thornhill vy. Alabama

(1940), 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; Winters

v. New York (1948), 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed.

840; International Harvester Co. v--Wentucky (1914), 234

U.S. 216, 34 S. Ct. 853, 58 L. Ed. 1284, inasmuch as “words

which are vague end fluid may be as much of a trap ior the

innocent as the ancient laws of Caligula”. U.S. v. Cardiff

(1952), 344 U.S. 174, 176, 73 S. Ct. 189, 97 L. Ed. 200.

In Cramp v. Board of Public Instructions of Orange

Comty (1961), 368 U.S. 278, 83 S. Ct. 279, 7 L. Ed. 290,

the Court had for consideration the constitutionality of a

Florida statute which required the complaining party to‘

15

execute a written oath in which he was required to swear

among other things that he had never lent his “aid, sup-

port, advice, counsel or influence to the Communist Party”.

In noting vagueness, the Court observed that the provi-

sions of the statute were completely lacking in terms sus-

ceptible of objective measurement, and were too broad in:

scope to convey the meanimg to a person of common intel-

ligence of what was intended by the statute. Concluding

against its constitutionality, the Court said (page 387):

“We think this case demonstrably falls within the com:

pass of those decisions of the Court which hold that

‘a statute which either forbids or requires the doing

of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning

and differ as to its application viciates the first essen-

tial due process of law’. Connally v. General Construc-

tion Co., supra * * *”

The Louisiana vagrancy statute does not stand up to

the test of the Connally rule and petitioner therefore re-

spectfully submits that it should be declared unconstitu-

tional because it violates the due process clause of the

Fourteenth Amendment.

(b) Denial of Equal Protection.

The vagrancy statute under consideration condemns not

a criminal act or criminal conduct but seeks to proscribe

and punish a declared status only, in consequence of which

it is not reasonably related to any legislative purpose im-

pervious to constitutional attack. A person is not amenable

to prosecution under this statute for what he does but

rather for the condition or status of his existence. It is

the type legislation which falls within the category so

lucidly described by Justice Frankfurter in his dissent in_

Winters in these words:

16

“The case involved a New Jersey statute of the type

that seeks to control ‘vagrancy’. These statutes are in_

a class by themselves, in view of the familiar abuses

to which they are put .. . Definiteness is,desiguedly ,

avoided so as to allow the net to be cast at large, to

enable men to be caught who are vaguely undesirable

in the eyes of the police and prosecution although not

chargeable with any particular offense. In short, these

‘vagrancy statutes’ and laws against ‘gangs’ are not

fenced in by the text of the statute or by the subject

matter so as to give notice of conduct to be avoided.”

The universally avowed purpose of vagrancy statutes os-

tensibly is to segregate the members of society into two

basic groups, i.e., the good members and the objectionable

members, with a view to preventing crimes which are likely

to flow from a vagrant’s mode of life.

“The purpose of vagrancy statutes is to subject per-

sons, whose habits of life are such as to make them

objectionable members of society, to police regulation

promotive of the safety or good order of the com-

munity in which they are found, and to prevent them

from becoming charges on the public but not to punish

\ them for the doing of specific overt acts. in other

words, the purpose of vagrancy statutes is to prevent

\\crimes which may likely flow from a vagrant’s mode

f life by cutting out at the roots breeding places of

ey crimes offensive to the personal well-being of

may citizens, which endanger private, property and

threaten the peace. Such preventive purpose wholly

fails if a law-enforcement officer must wait until a

crime is committed * * *” 91 CJS 778, Vagrancy,

Section 1.

Louisiana subscribes to such a broad concept of penal

legislation. Siate v. McCormack (1917), 142 La. 580, 77 Se.

”

’

17

288. Such an authoritative interpretation puts the words

of the interpretation in the statute as definitely as if they

had been so amended by the legislature. Hebert v. Loui-

stana (1926), 272 U.S. 312, 47 S. Ct. 103, 71 L. Ed. 270;

Skirtotes v. Florida (1941), 313 U.S. 69, 61 S. Ct. 924,

85 L. Ed. 1193; Winters v. New York (1948), 333 U.S. 507,

514, 68 S. Ct. 665, 92 L. Ed. 840; Kingsley Pictures Corp. .

v. Regent (1959), 360 U.S. 684, 79 S. Ct. 1362, 3 L. Ed.

1512; Albertson v. Millard (1953), 345 U.S, 242, 73 S. Ct.

600, 97 L. Ed. 983; U. 8. v. Burnison (1950), 339 U.S. 87, 70

S. Ct. 503; Aero Transit Vo. v. Commissioners (1947), 332

U.S. 495, 68 S. Ct. 167, 92 L. Ed. 99.

Within such a context does the vagrancy statute at bar

conform to the safeguarding standards of the equal pro-

tection clause of the Constitution?

At the outset it must be reminded that in Louisiana there

are no common law crimes. And as already pointed out no

act or conduct is a crime unless it is defined and made a

crime clearly and unmistakably by statute. A reference to

the Louisiana Criminal Code (L.S.A.—R.S. 14:7) indi-

cates that only a defined act or conduct is inten@® to be

made criminally punishable.

“A crime is that Conduct which is defined as criminal

in this code, or in other acis of the Legislature, or in

the Constitution of this State.” (R.S. 14:7)

Contrary to such legislative postulate, R.S. 14:107 de-

fines as a crime the status of being in or near any structure

or private grounds without being able to account for one’s

lawful presence therein. Thus, it appears in the very con-

ception of this statutory crime that a difference is made

between it and other criminal offenses,

Furthermore, the very nature of this statutory offense

effects an even greater and far more significant difference

18

4

than the one just noted. Inasmuch as under the terms of

this defined offense the failure of one to account for his

lawful presence is part of the offense, one therefore wish-

ing to avoid arrest and/or conviction must affirmativeiy

speak up when apprehended or tried. He must, in effect,

testify for—and if what he says does not convince or sat-

isfy the arresting officer or the Court, then against—him-

self. He cannot remain mute, because obviously refusing

to “account” for his lawful presence leaves unrefuted that

part of the offense “without being able to account for his

lawful presence” as would be the situation if his “account-

ing” proved unsatisfactory. The unusual result is that,

unlike other citizens accused of crime in Louisiana, one

accused of vagrancy on the count at bar cannot enjoy the

presumption of innocence common to all accused of crime

while simultaneously relying on the privilege of the Fifth

Amendment, because his very silence supplies proof of

his guilt, i.e., his failure to account for his lawful presence.

In such a situation, to state it otherwise, the State has the

burden merely to prove the accused’s presence in a given

locale. The burden then shifts to the accused to prove the

innocence or validity of his presence. He is thus compelled

by statute to prove his innocence. This anomalous situa-

tion obtains even though the Louisiana Supreme Court

heretofore has held that it is error to compel an accused to

prove his innocence. State v. Rock (1926), 162 La, 299,

110 So. 482.

There is no parallel to such a situation in Louisiana.

Every person accused of crimé is presumed to be innocent,

L.S.A.-R.S. 15:387, and this presumption abides with the

accused throughout his trial and prevails unless and until »

the State produces credible evidence sufficient to overcome

this presumption. State v. Rock, supra. Furthermore, no

person may be compelled to take the witness stand in his

19

own defense, Louisiana Constitution, Article 1, Section 11,”

and even comment by the prosecution concerning the failure

of the accused to take the witness stand constitutes revers-

ible error. State v. Stahl (1959), 236 La. 362, 107 So. 2d

670; State v. Bentley (1951), 219 La. 893, 54 So. 2d 137;

State v. Antoine (1938), 189 La. 619, 180 So. 465; State v.

Richardson (1932), 175 La. 823, 144 So. 587 »State v. Sinigal

(1915), 188 La. 469, 70 So. 478. Under the vagrancy stat-

ute in question, however, these rights and privileges are

denied one accused of its violation. Such an accused there-

fore does not stand on an equal footing with other citizens

accused of crimes.

There is another aspect of this os statute which

arrests attention. It appears quite convincingly that the

statute effects an unreasonable classification, both as among

those included in the catchall definitions of vagrancy and

as between those included in these definitions and those

not included therein. There appears to be no reasonable

basis whatever, for example, to classify as a vagrant one

who is found near or in any structure or private grounds

without being able to account for his lawful presence with

one engaged as a prostitute. To say the least, it is diffi-

cult to conceive how the morals or well-being of the gen-

eral public could be similarly affected by one standing

near a structure without an assignable reason as they could

and are affected by the activities of a prostitute.

Additionally, unlike those not coming within the’ clas-

sification, by the very terms of the statute, petitioner and

®“No persoiishall be compelled to give evidence against him-

self in a criminal case or in any proceeding that may subject hia

to criminal prosecution, except as otherwise provided in this Con-

stitution. No person under arrest shall be subjected to any treat-

‘ment designed by effect on body or mind to compel confession of

crime; nor shall any confession be wong any person accused

of crime unless freely and voluntarily"mMade.” — .

20

ra

those included in the definitions of vagrants are not charged

with crime and prosecuted because of any offensive and

defined conduct. They are subject to criminal prosecution

simply because of a mode of life. The apparent theory

justifying such legislation is that persons engaging in

such a mode of existence or occupying such a defined status

are potential criminals and their status breeds criminal

conduct. As stated in C.J.S., supra:

“In other words, the purpose of vagrancy statutes is to

prevent crimes which may likely flow from a vagrant’s

mode of life by cutting out*at the roots breeding

places of many crimes cffensive to the personal well-

being of many citizens which endanger private prop-

erty and threaten the peace.”

While such a theory of criminal justice is not novel,’

it is a legal anachronism repugnant to the concept of

ordered liberty in our society. The very nature of such a

theory fosters iimitless opportunities for police abuses ad-

ministered under the guise of police regulation. It con-

stitutes a sort of carte blanche authority empowering en-

forcement officers to detain and arrest without warrant or

probable cause, where otherwise, absent such a vagrancy

statute, the same police action would offend against the

guaranties of the Constitution. Henry v. United States

(1959), 361 U.S. 98, 80 S.Ct. 168; Wolf v. Colorado (1949),

338 U.S. 25, 69 S.Ct. 1359. In fact, in State v. Solomon

(1952), 222 La. 269, 62 So. 2d 481, where the accused was

convicted of murder,sthe Louisiana Supreme Court relied

*° In 37 New York University Law Review, Number 1, pp. 102-

136, in an interesting article entitled: The Vagrancy Conccpt Re-

considered: Problems and Abuses in Statitte Criminology, the

authors trace the historical origin of vagrancy statutes to more

than five centuries ago.

“

21

upon the vagrancy statute in holding that his arrest was

legal, though accomplished without the warrant required

by law, inasmuch as the accused had been booked for the

crime of vagrancy after his arrest. Said the Louisiana

Court, at p. 485:

“The cases of McNabb v. United States, 318 U.S. 332,

63 S.Ct. 608, 87 L.Ed. 819, and Upshaw v. United

States, 335 U.S. 410, 69 S.Ct. 170, 172, 93 L.Ed. 10,

relied on by counsel are not apposite here. The prin-

ciple upon which those decisions are pitched does not

control prosecutions under the laws of this State.

Additionally appellant was not illegally detained in

the case at bar, having been charged with vagrancy in

violation of L.S.A.-R.S. 14:107.”

Such a statute furthermore empowers law enforcement

officers to be selective in the enforcement of its terms.

There is nothing to restrict police officers from discrimi-

nating against eny particular group, ethnic, political, or

racial, in administering the terms of vagrancy statutes.

Furthermore, proliferation of such police abuse is as limit-

less as the vagaries of human imagination.

There exists no credible evidence reasonably demonstra-

tive of the conclusion that there is any causal relationship

based upon experience anent vagrancy statutes of the type

under consideration, between the object of punishment and

the harm from which society seeks protection, i.e., the

legislative purpose. None of the authorities who have de-

voted their attention to this question has been able to dis-

cover evidence supporting the theoretical basis of vagrancy

statutes." In other words, there exists no convincing evi-

dence that persons classified as vagrants are more prone

*? Tbid.

22

to commit crimes than others or that the status which they

occupy breeds more crimes than the mode of existence of

persons not included in the classification. The net result

is that the theory can be sustained only if ite, major

premise, i.e., all vagrants are potential criminals, is pre-

sumed. Such a presumption, however, is impermissible

where the matter at stake is the liberty of the individual.

“Although the Court has not assumed to define liberty

with any great precision, that term is not confined to

mere freedom from bodily restraint. Liberty under

law extends to the full range of conduct which the in-

dividual is free to pursue and it cannot be restricted

except for a proper governmental objective.” Bolling

v. Sharpe (1954), 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed.

884.

Discrimination of an unusual character especially sug-

gests careful consideration to determine whether they are

obnoxious to the Constitutional provision. Louisville Gas

and Electric Co. v. Coleman (1928), 277 U.S. 32, 48 S.Ct.

423, 72 L.Ed. 770; Hartford Steam Boiler Inspection and

Insurance Co. v. Harrison (1937), 301 U.S. 459, 57 S.Ct.

838, 81 L.Ed. 1223. Furthermore, as the Court appro-

priately observed in Morey v. Doud (1957), 354 U.S. 457,

77 S.Ct. 1344, 1350:

“A statutory discrimination must be based on differ-

ences that are reasonably related to the purpose of

the act in which it is found.”

As has been suggested, there is no discoverable evidence

justifying the making of differences between petitioner,

who was charged as a vagrant, and those similarly situ-

ated, as opposed to other citizens who are amenable to

prosecution only for defined acts or conduct. Petitioner

23

and those falling within the classification of vagrants never-

theless are singled out for different treatment not based

on some reasonable criteria justifying the difference. Such

legislation offends against the guaranties of the Constitu-

tion.

“When the existence of a distinct class is demonstrated,

and it is further shown that the laws, as written or as

applied, single out that class for different treatment

not based on some reasonable classification, the guar-

anties of the Constitution have been violated.” Her-

nandez v. State of Texas (1954), 347 U.S. 475, 74 S.Ct.

667, 670, 98 L.Ed. 866.

State Has Forfeited Right to Prosecute Petitioner

Practically all of petitioner’s civil rights have been vio-

lated by the enforcement officials involved in his arrest

and imprisonment and sanctioned by the judicial officers

to whom application for habeas corpus and writs was

made.** In the first place petitioner was arrested without

a warrant contrary to Louisiana law, R.S. 15:60, and only

because his former employer instructed the Deputy Sher-

iffs to arrest him for trespassing (Ex. A, Tr. p. 17). He

was immediately thereafter put in jail where he remained

without being brought before a committing magistrate as

required by law. *

In Louisiana a warrant is a written order issued by a

Judge to a peace officer, directing said officer to arrest a

named individual and to bring him before the Judge is-

suing the warrant. To arrest with a warrant, the officer

must have the warrant in his immediate possession, he

2 All pertinent statutes involved are set out verba‘'m in the

index to this brief.

24

must inform the person being arrested of the warrant and

of the basis for the arrest, and he must make written re-

turn on the warrant. Likewise, a person may be arrested

by an officer having authoritative information that another

officer holds such a warrant or when the misdemeanor is

committed in the immediate presence of the arresting of-

ficer, who then and there makes the arrest. No person

may be legally arrested for a misdemeanor under any

other circumstances. Following an arrest, Louisiana law

requires that the prisoner be taken immediately to the

nearest jail or police station and booked. He must be per-

mitted to use the telephone or send a messenger to an

attorney or surety, or to family or friends for the pur-

pose of obtaining counsel and a surety. This was denied

to petitioner (Ex. A, Tr. pp. 17-20). He is entitled to be

admitted to bail from the time of his arrest and he may

not be placed in solitary confinement. If the arrest has

been made in response to a warrant, the p .er must be

taken without delay before the magistrate designated in

said warrant. If the arrest has been made without a war-

rant, the prisoner must be taken without delay before a

committing magistrate. This too was denied to petitioner

and on the contrary he was held incommunicado for al-

most two months (Ex. A, Tr. pp. 17-20). When a prisoner

has been brought before such magistrate, he must be

ordered released unless an affidavit be then made, charging

him with a criminal offense. If such affidavit be made—

and one was made the day following petitioner’s incarcera-

tion (Ex. B, Tr. p. 21 yAthe magistrate has the mandatory

duty of ordering a preliminary examination to be held at

a designated time, in order that it may be determined by

the judicial arm of the government whether the prisoner

should be deprived of his liberty. Both the State and the

accused have a right at any t'me to petition for preliminary

25

examination, and if at that time the prosecution is pro-

ceeding on the basis of an indictment filed or a bill of

information filed, the granting of preliminary examination

is entirely within the discretion of the Court, but if the

petitioner is being held merely on an affidavit, the Court

has no discretion but must order the preliminary examina-

tion. L.S.A.-R.S. 15:154.° Petitioner filed his application

for preliminary examination at a time before any bill of

information had been filed against him and while he was

being held on the authority of an affidavit, notwithstand-

ing which, the trial judge, though being under the manda-

tory duty to grant such a hearing, summarily denied peti-

tioner’s application when the _— Attorney filed a bill

of information against petitionér on the hearing date of

the preliminary examination. The denial by these State

officials of petitioner’s legal rights constitutes a denial of

equal protection of State laws. And, under the doctrine

of McNabb v. United States, 318 U.S.° 332, 63 S.Ct. 608,

87 L.Ed. 819, and Upshaw v. United States, 335 U.S. 410,

69 S.Ct. 170, 93 L.Ed. 10, seemingly the entire proceedings

against petitioner are an absolute nullity and thereby the

State has forfeited its right to prosecute petitioner.

ay

* “Either the State or the defendant shall have the right to _

demand a preliminary examination; provided that after an indict-

ment found or an information filed, it shall be wholly within the

discretion of the district court, and not subject to review by any

other court, to order or to refuse to order a preliminary examina-

tion; nor shall such examination be held in any case in which the

offense charged is within the trial jurisdiction of any city or

municipal court.”

|

26

Conclusion

Petitioner therefore respectfully requests that Louisiana

Revised Statute, Title 14, Section 107, as amended by Act

454, Section 1 of 1952, be declared null and void as offend-

ing against the guaranties of the Constitution of the United

States, and the arrest and attempted prosecution of peti-

tioner be annulled and set aside and all official entries

and/or judgments entered against petitioner in pursuance

of the prosecution of petitioner under such statute be

ordered cancelled and erased from the public records of

any Louisiana court of competent jurisdiction.

Respectfully submitted,

Srmon & Trice

Attorneys at Law

1408 Pinhook Road

Post Office Box 2241

Lafayette, Louisiana

By /s/ J. Mtxos Simon

J. Minos Simon