Ex Parte Karnstrom

Citation249 S.W. 595,297 Mo. 384
Decision Date03 March 1923
Docket NumberNo. 24106.,24106.
PartiesEx parte KARNSTROM.
CourtUnited States State Supreme Court of Missouri

Harold O. Mulks, of Chicago, Ill., for petitioner.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for respondent.

DAVID E. BLAIR, J.

This is an original proceeding in this court by habeas corpus, whereby petitioner seeks to be discharged from the custody of the sheriff of Jasper county, under commitment issued by a justice of the peace of Galena township in said county, who sentenced petitioner, upon his conviction as a vagrant, to imprisonment in jail for six months and to pay a fine of $100 and the costs. The production of the body of the petitioner and issuance of our writ were formerly waived, and the case is submitted upon the petition and upon briefs by petitioner's counsel and the Attorney General. This court fixed petitioner's bail, pending the determination of this case, and he was released thereunder.

The information under which petitioner was convicted, with caption omitted, reads as follows:

"W. N. Andrews, assistant prosecuting attorney within and for the county of Jasper, and state of Missouri, upon his official oath, informs the justice that on or about the _____ day of June, 1922, in the township of Galena, in the county of Jasper and state of Missouri, Harvey Karnstrom did then and there unlawfully tramp and wonder around from place to place without any visible means of support against the peace and dignity of the state.

"This information is based on the affidavit and complaint of W. N. Andrews heretofore filed with the justice. W. N. Andrews, Asst. Prosecuting Attorney of Jasper County, Missouri."

The affidavit referred to is identical in its charging part with the foregoing information and purports to be signed by W. N. Andrews and sworn to by him before the justice of the peace on, June 23, 1922.

The statute upon which said affidavit and information were based is section 3581, R. S. 1919, which reads as follows:

"Sec. 3581. Vagrants, Who are.—Every person who may be found loitering around houses of ill fame, gambling houses, or places where liquors are sold or drank, without any visible means of support, or shall attend or operate any gambling device or apparatus, or be engaged in practicing any trick or device to procure money or other thing of value, or shall be engaged in any unlawful calling whatever, and every able-bodied married man who shall neglect or refuse to provide for the support of his family, and every person fond tramping or wandering around from place to place without any visible memo of support, shall be deemed a vagrant, and, upon conviction thereof, shall be punished by imprisonment in the county jail not less than twenty days, or by fine not less than twenty dollars, or by both such fine and imprisonment."

Me portion of the statute put in italics by us is the only part of said statute involved in this case.

I. The first contention of petitioner is bent stated by quoting from his brief:

"First. That the act of the Legislature of the State of Missouri, entitled `An act to revise and amend the Code of Criminal Procedure, declaring and defining public offenses, prescribing punishments therefor and proceedings thereon,' approved May 19, 1879, of which said act, section 3581, Revised Statutes 1919, is a section, is unconstitutional, null and void, and destitute of legal effect in this, that the same is in violation of section 28, article 6, of the Constitution of the State of Missouri, for the reason that said title expresses no subject whatever."

Section 28, art. 4, of the Missouri Constitution, omitting the exceptions therein stated, provides that no bill shall contain more than one subject, which shall be clearly expressed in its title.

Section 3581, R. S. 1919, has come down to us in identical language through all the revisions of our statutes since it first appeared as a new section in the statutes of 1879 as section 1568 thereof. A revision of our criminal laws was made in 1879 and was published in the statutes of that year as sections 1227 to 2119, inclusive, thus including said section 1568.

Petitioner is not the first one to raise this question. The act was attacked in the case of State v. Brassfield, 81 Mo. 151, 51 Am. Rep. 234, and it was there held that the act did not violate section 28, art. 4, of the Constitution and was not subject to the identical attack petitioner now makes against it. Henry, J., with the concurrence of all the judges, there said:

"Chapter 24 of the Revised Statutes, commencing with section 1227 and ending with section 2119, inclusive, was passed as one bill, and embraces the entire subject of crime and criminal procedure, and there is nothing in the point that the constitutional provision that the subject of each bill shall be clearly expressed in its title and that no bill shall contain but one subject, was violated. Article 4, Const. There are no incongruous matters in chapter 26, and the title of `Crimes and Criminal Procedure' clearly indicates what it contains. What are crimes and the procedure in criminal cases, are cognate subjects, and the definition of crimes and the procedure against persons accused of committing them, may very properly be embraced in one bill."

The Brassfield Case was cited with approval by this court in State v. Distilling Co., 236 Mo. 219, loc. cit. 261, 139 S. W. 453, St. Louis v. Weitzel, 130 Mo. loc. cit. 615, 31 S. W. 1045, and other cases. The cases cited by petitioner are all from states other than Missouri. We will not undertake to examine the varying constitutional provisions upon which those cases were decided, even assuming that they hold as petitioner contends. The rule laid down in the Brassfield Case is the settled law in Missouri. We therefore hold that this contention of petitioner is without merit.

II. Petitioner contends that the provision that "every person found tramping and wandering around from place to place without visible means of support" is in violation of section 4, art. 2, of the Missouri Constitution, in that said section attempts to penalize poverty, destitution, and unavoidable dependency. Said section of the Constitution Is as follows:

"That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails of its chief design."

The same constitutional provision was invoked in Ex parte Branch, 234 Mo. 466, 137 S. W. 886, Ann. Eras. 1912D, 50, in a habeas corpus case, wherein petitioner was imprisoned by reason of a conviction for vagrancy under the charge that he was found loitering around houses of ill fame, gambling houses, and places where liquors were sold and drank, without visible means of support. It was therein held that the act in respect to the offense charged was constitutional when tested by section 4, art. 2. Roy, C., said:

"The law does not prohibit any one from being without visible means of support, or from :Being idle, or from loitering around saloons or gambling houses. Neither one of those things in itself and alone can be punished as a crime, but when they all three meet in one person at the same time they constitute a vagrant, who has ham, very appropriately described as `the chrysalis of every species of criminal.'"

The act does not penalize mere poverty, destitution, or misfortune. Indeed, it says nothing whatever about poverty. The acts denounced are tramping or wandering from place to place, without visible means of support. Nor is one going from place to place seeking employment within its inhibition, although clad in rags and living in filth, if he is seeking to secure an honest livelihood. "Tramping" as used in the statute means moving about from place to place as a tramp or beggar without actual destination or honest purpose. "Wandering" means rambling here and there without any certain course and with no definite object in view. Webster's New International Dictionary; Ex parte Taft v. Shaw, 284 Mo. loc. cit. 549, 225 S. W. 457.

These words exclude the class of persons, though destitute, who move from place to Diane with the definite purpose of securing honest employment, even though the source of their support is not visible. Following the reasoning of Ex parte Branch, supra, the law is not violated unless there is not only an idle, purposeless tramping or wandering from place to place, but also the failure to have any visible means of support. The contention is devoid of merit.

III. Petitioner contends that the clause of the act we are considering violates the Fourteenth Amendment to the federal Constitution, and section 32, art. 4, of the Missouri Constitution. The latter evidently was intended for subdivision 32, § 53, art. 4, which prohibits the Legislature from enacting local or special laws where a general law can be made applicable. The federal constitutional provision is that provision of section 1 of the Fourteenth...

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