# Brief for the Petitioner — Arceneaux v. Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Petitioner
- **Published:** January 1, 1964
- **Citation:** 376 U.S. 336

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0448%3A2. Public record. Not legal advice.