State v. . Custer

Bodmae, J. The subject of vagrancy is governed altogether by statute. There are two of this State which must be considered for the decision of this case. The indictment follows closely the language of S. 43, ch. 34, Bev. Code; and as this differs somewhat from the subsequent act of 1866, (ch. 42, p. 61,) it becomes necessary to inquire whether the latter act is a repeal of the first. The last contains no clause of express repeal; and the rule in such cases is, that if there be no positive repugnancy, it will be *341 held that the Legislature intended that both should be 'in force. In the description of the offence in the two statutes, there is a slight difference in words, but we can perceive no substantial difference in meaning. Both provide that a. Justice of the Peace may issue a warrant -and bind the defendant over to Court, where he may be indicted. But the act of 1866 differs from Rev. Code in expressly declaring vagrancy a misdemeanor, and therefore indictable without any preliminary proceedings before a Justice. If it were material, probably, we should so hold under the Revised Code. But as we consider the section in the Rev. Code repealed, it is not material. The most important difference in the two statutes, is in the punishment. By the Revised Code it is required that the convict ushall be fined, and bé •also imprisoned for the space of twenty days, and be required to give security for his good behavior for such time as the •Court shall adjudge.” Whereas, by the act of 1866, ‘‘upon conviction the Court may fine, or imprison him, or both, or ¡sentence him to the work house for such time as the Court may think fit.” The two punishments for the same offence -are inconsistent; under the first statute, fine and imprisonment for twenty days are imperative; under the second, the punishment maybe fine or imprisonment, or the work house. We think the two statutes cannot stand together, and con.sider the second a repeal of the first. The second question is, whether the indictment can be sustained under the act of 1866. We think it cannot be. And the same objections which are fatal to it, considering it drawn under this act, would be equally applicable if the act in the Revised Code was in force, and the indictment had been drawn under that act as it seems to have been. The statute defines vagrants under five descriptions: 1. ei Any person who may be able to labor and has no apparent means of subsistence, and neglects to apply himself *342 to some honest occupation for the support of himself and his1, ■family, if he have one; . 2. Or shall be found spending his time in dissipation; S. Or gaming; 4. Or sauntering about without employment; 5. Or endeavoring to maintain himseli or his family by any undue or unlawful means, shall be deemed a vagrant,” &c. We think that the description of persons expressed in. the first of these paragraphs must be held to extend through 1he whole sentence, and that the word “ or ” in the second paragraph must be read c< and.” Otherwise it would follow, among other things, that any person whatever “ sauntering, about without employment,” although he might have ample means of subsistence, or might generally be engaged in an honest occupation, would be a vagrant. Now the indictment does not charge that the defendant was able to labor, or that she neglected to apply herself to some honest occupation. It fails, therefore, to bring the defendant within the description of the statute. , 2. The indictment charges that the defendant“ endeavored to maintain herself by gaming or other undue means.” We think it is deficient in the certainty required in the description of the offence. It is not allowable to charge that a defendant committed one offence, or some other offence. Wharton Orim. Law, s. 294-295. Nor would it be sufficient to say “by other undue means;” the particular means must be alleged, in order that the Court may see that they were “ undue.” These defects would cause the Court to arrest the judgment, if the defendant had been found guilty by a general verdict. But the defendant is entitled to require the decision of the Court upon the effect of the special verdict. We concur with the Judge below, that upon that verdict the defendant was entitled to be declared not guilty. The verdict finds that the defendant “ was frequently seen, sauntering about and endeavoring to maintain herself by *343 whoringas a question of morals, no one will doubt that prostitution is an undue means of self-maintenance. But in a Court of law, and for the construction of a penal statute, “ undue ” cannot be held to mean merely immoral'; it can only mean unlawful. Courts of law are not authorized to guard private morals, or to act “jwo salute animas Prostitution is not an indictable offence at common law, unless it be so public as to be a nuisance; nor is it made so by s. 45, ch. 34, of tjte Rev. Code. Moreover, it is not found that the defendant committed prostitution, her endeavors might have been ineffectual. In a special verdict we are not at liberty to infer anything not directly found. The judgment below is affirmed. Let this opinion be certified. Pee Cdeiam. Judgment affirmed.