People v. Sohn

• Decision Date: 07 January 1936
• Citation: 199 N.E. 501,269 N.Y. 330
• Parties: PEOPLE v. SOHN.
• Court: New York Court of Appeals Court of Appeals

269 N.Y. 330

199 N.E. 501

PEOPLE

v.SOHN.

Court of Appeals of New York.

Jan. 7, 1936.

Proceeding by the People against Harry Sohn. From a judgment of the Court of Special Sessions which affirmed a judgment of the Magistrate's Court of the City of New York convicting defendant of vagrancy (155 Misc. 445, 279 N.Y.S. 586), defendant appeals, after permission to appeal was granted by a judge of Court of Appeals.

Judgments reversed and information dismissed.

Appeal from Court of Special Sessions of City of New York.

Arthur H. Rose and Leonard E. Turitz, both of New York City, for appellant.

William Copeland Dodge, Dist. Atty., of New York City (Felix C. Benvenga and LeRoy Mandle, both of New York City, of counsel), for the People.

CRANE, Chief Judge.

This is an appeal from a judgment of conviction in the Magistrate's Court of the city of New York for an alleged violation of subdivision 1 of section 887 of the Code of Criminal Procedure, sentencing the defendant to a term of three months in the workhouse. The judgment was affirmed by the Court of Special Sessions. The appeal comes here upon the certificate of a judge of this court, pursuant to section 520 of the Code of Criminal Procedure.

Title 6 of the Code of Criminal Procedure is of proceedings respecting vagrants. Who are vagrants? Section 887 tells us in the following words: ‘1. A person who, not having visible means to maintain himself, lives without employment.’

The evidence is very meager to sustain this charge, and is given by the police officer as follows:

‘On February 25th, at about 3:50 p. m., in 1520 Broadway, a poolroom, I observed the defendant and another man, now here, downstairs, in the poolroom, talking. I went over to the defendant and said, ‘What are you doing down here?’ And this defendant said, ‘I ain't doing nothing.’ I said, ‘Are you working?’ He said, ‘No, I am not.’ I said, ‘How long has it been since you have worked?’ He said, ‘About eight months.’ I said, ‘How do you get along?’ He said, ‘I have friends to take care of me.’ I said, ‘Where is the last place you have worked?’ He gave me some place in the public market, your Honor. I said, ‘What are you doing with this fellow, Miller?’ He said, ‘Nothing, just hanging around. I am off the racket; I don't do that any more.’ I said, ‘When did you stop?’ He said, ‘I have been shot about four months ago; I was in the hospital about eight weeks. Ever since I come out of the hospital I ain't doing nothing.’

‘Q. Did you search the defendant? A. Yes, sir.

‘Q. Did you find anything on him? A. Yes, sir; fifteen cents.

‘Q. When did he say he worked last? A. About eight months ago.’

This is all the testimony for the prosecution.

The defendant took the stand and stated that he lived at 3505 Rochambeau avenue, Bronx, and continued: ‘I worked three weeks ago in a shoe-store, Saturdays and extra, in Fordham Road. I have a home in New York and I have a sister with a home in New York; and she told me she will help me find employment. I have made a few errors in the past, I will admit; but I am trying to do the best I can now. I was in Loew's at the time. I come out of the picture-show and I went downstairs to the poolroom for a minute or so.’

There was some evidence about the reputation of the defendant and of his previous convictions, but this is all that bears upon the question of vagrancy, and we give the evidence to emphasize the point that there is something lacking to make out the offense.

Taking the words of subdivision 1 as they read would put in jail a great many people in these days who are out of employment and cannot find work. Our relief rolls testify to persons who have no visible means to maintain themselves and live without employment. They are maintained by the public through sheer necessity. This section has reference to those hangers-on of society, ne'er-do-wells, loafers who stand about our street corners and public places without any visible means of employment and refuse to work when employment can be had. A man does not become a vagrant who wants a job and cannot find it. He is a vagrant when a job of some kind can be obtained and he prefers to loaf around and do nothing, having apparently no ascertainable means of support. A vagrant is one who is apt to become a public charge through his own laziness. The neglect to seek employment seems essential, since without it mere misfortune would be punishable. In re Jordan, 90 Mich. 3, 50 N.W. 1087. In Ex parte Karnstrom, 297 Mo. 384, 249 S.W. 595, 596, the statute (Mo.St.Ann. § 4333, p. 3011) provided: ‘Every person found tramping or wandering around from place to place without any visible means of support, shall be deemed a vagrant.’ It was held constitutional. In Re Clancy, 112 Kan. 247, 210 P. 487, the statute (Laws Kan. 1917, c. 167) read: ‘Any person engaged in any unlawful calling whatever, or who shall be found loitering without visible means of support in any community, or who, being without visible means of support shall refuse to work when work at fair wages is to be procured in the community’ is a vagrant.

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