State v. Armstrong

• Decision Date: 08 November 1968
• Docket Number: 41213,Nos. 41212,s. 41212
• Citation: 282 Minn. 39,162 N.W.2d 357
• Parties: STATE of Minnesota, Respondent, v. Gayle Jean ARMSTRONG, Appellant.
• Court: Minnesota Supreme Court

Page 357

162 N.W.2d 357

282 Minn. 39

STATE of Minnesota, Respondent, v. Gayle Jean ARMSTRONG, Appellant.

Nos. 41212, 41213.

Supreme Court of Minnesota.

Nov. 8, 1968.

Syllabus by the Court

1. Minneapolis Ordinances §§ 870.010 and 870.050, which in substance make it a misdemeanor to 'loiter' or to 'lurk' with intent to solicit for purposes of prostitution or any other unlawful act, are not so vague and indefinite as to offend constitutional due process. To establish guilt of each offense proof of both the overt act of loitering or lurking and the intent to commit the unlawful act is required.

2. Where defendant, a know prostitute present in an area where the solicitation of prostitution is rife, is observed by officers of the police morals squad to enter an automobile of a stranger and to drive off with him on a suspect route and where, upon interrogation, she gives a palpably preposterous account of her actions, the court might reasonably, in these unusual circumstances, draw an affirmative inference of intended unlawful intent sufficient to sustain a conviction of lurking by a fair preponderance of the evidence.

3. Where it was charged in a prosecution under the lurking ordinance that defendant had the unlawful intent to solicit a man for purposes of prostitution and where a police officer testified, over objection, that the man, in an extrajudicial conversation at which defendant was present, had accused her of thus soliciting him, but the witness acknowledged that defendant had at that time expressly denied the accusation, such testimony was prejudicial hearsay and not admissible as an exception to the exclusionary hearsay rule either as a tacit admission by defendant or as a res gestae utterance by the declarant. Because the finding of an unlawful intent may have been based upon this incompetent evidence, rather than upon inferences otherwise supportable by other, competent evidence, the conviction must be set aside.

Ellis Olkon and Sheldon Joseph Eviden, Minneapolis, for appellant.

Keith M. Stidd, City Atty., Edward Vavreck and Robert Alfton, Asst. City Attys., Minneapolis, for respondent.

OPINION

PETERSON, Justice.

Defendant, a prostitute who allegedly solicited two men for purposes of prostitution, was tab charged and convicted in Hennepin County Municipal Court of violating the so-called 'loitering' and 'lurking' ordinances of the city of Minneapolis. Minneapolis Ordinance § 870.010, labeled as the 'vagrancy' ordinance, provides in relevant part:

'No person shall Loiter on the streets or in a public place or in a place open to the public With intent to solicit for purposes of prostitution or any other act prohibited by law.' ¹ (Italics supplied.)

Minneapolis Ordinance § 870.050, labeled as the 'lurking' ordinance, provides:

'No person, in any public or private place, shall Lurk, lie in wait or be concealed With intent to do any mischief or To commit any crime or unlawful act.' (Italics supplied.)

The constitutionality of both ordinances is challenged on the fundamental ground that they are so vague and indefinite as to establish no clear standard of criminal conduct, thereby violating the due process requirements of the Fourteenth Amendment. The convictions are additionally attacked on evidentiary grounds.

1. We hold that the ordinances are not unconstitutionally vague and indefinite or violative of constitutional due process. Ordinances like those of Minneapolis, we note at the outset, are neither novel nor unprecedented. Similar statutes have existed in this state for more than half a century, ² and a variety of such ordinances and statutes exist in numerous other jurisdictions. ³ Our original statute, less precise and specific in terms than the present state statute or the provisions of the ordinances immediately before us, was sustained against the constitutional challenge of vagueness by a unanimous court in State v. McCorvey, 262 Minn. 361, 114 N.W.2d 703. The United States Supreme Court has twice recently declined to consider the constitutional issues raised by a municipal ordinance and a state statute no more precise and definite than the statute considered in State v. McCorvey, supra. In Hicks v. District of Columbia, 383 U.S. 252, 253, 86 S.Ct. 798, 15 L.Ed.2d 744, 745, the court dismissed, as improvidently granted, a writ of certiorari to review a District of Columbia ordinance defining a 'vagrant' as '(a)ny person leading an immoral or profligate life who has no lawful employment and who has no lawful means of support realized from a lawful occupation or source.' In Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713, 20 L.Ed.2d 838, the court considered a conviction under a Florida statute making it a misdemeanor to be found 'wandering or strolling around from place to place without any lawful purpose or object.' The conviction was reversed percuriam, but only on the ground that proof that the defendant was sitting on a park bench at 4:25 a.m. fell short of proving the essential element of 'wandering or strolling.' ⁴

The bare words 'loitering' or 'lurking' are not as ambiguous or vague as might appear from first impression, even taken out of statutory context. 'When a legislative act has as its purpose the prohibition of an undesirable form of conduct rather than a specific act,' as was reiterated in McCorvey (262 Minn. 365, 114 N.W.2d 706), 'the definition by its very nature must be broad.' 'Loitering' has been held to be a term of common usage with a meaning reasonably understood by persons of common intelligence. State v. McCorvey, supra; People v. Merolla, 9 N.Y.2d 62, 211 N.Y.S.2d 155, 172 N.E.2d 541; In re Cregler, 56 Cal.2d 308, 14 Cal.Rptr. 289, 363 P.2d 305. 'Lurking' is no less a word of accepted definition reasonably understandable to the ordinary person. ⁵ Although 'lurking' may have a primary connotation of hiding or concealment, it equally connotes a persistent presence or a furtive movement in a place. See, Webster's Third New International Dictionary (1961), p. 1348; The Random House Dictionary of the English Language, p. 854; The Oxford New English Dictionary of Historical Principles, p. 509. ⁶ Despite doubtless difference in nuance, 'lurking' is not significantly different from 'loitering.'

The offense defined by each of the two ordinances consists of two essential elements: (1) The act of lurking or loitering and (2) a proved intent to commit an unlawful act. ⁷ Whatever the arguable ambiguity or generality as to the element of 'lurking' or 'loitering,' there is none whatever as to the element of intent. The element of intent gives meaning to the element of lurking or loitering and is a rational basis for proscribing such acts as harmful conduct. Both elements of the offense must, of course, be proved. The overt act of lurking or loitering, standing alone, is not made punishable by the provisions of the ordinances under which defendant was charged. An unlawful intent, without more, is not made punishable. Because of this required union of overt act and unlawful intent, defendant is protected from punishment either for harmless conduct or for harmful conduct the criminality of which had not been fairly communicated to her. See, Omaechevarria v. State of Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495.

2. The act of lurking or loitering, with the intent to solicit for the purpose of prostitution or other unlawful act, must be proved by a fair preponderance of the evidence. State v. Miller, 253 Minn. 112, 116, 91 N.W.2d 138, 141. A consideration of the evidence adduced in the lurking case will suffice to illustrate the problems of proof in both of these cases. ⁸

It is undisputed that on May 24, 1967, between 10 and 11 p.m., defendant was seated with a female companion in a restaurant known as the Green Shoppe, located between Fourth and Fifth Streets on Hennepin Avenue. It is undisputed, also, that she was a previously convicted prostitute, for it was both testified to by one of the arresting officers and was acknowledged by her own attorney in final argument in the trial court.

We consider, first, the testimony of Jerry F. Torrey and Raymond J. Merchant, police morals squad officers who arrested defendant. They observed defendant from a distance of about 150 to 200 feet from the restaurant, standing on Hennepin Avenue. Their unmarked police squad car was parked on Fifth Street just off Hennepin, facing in the direction of First Avenue North. A late model Chevrolet automobile driven by a man stopped in front of the Green Shoppe, at which time defendant promptly came out from the restaurant and entered the open door of the automobile. The Chevrolet then drove off, and the officers followed it in their squad car. The route of the Chevrolet was a circular route: A right turn from Hennepin Avenue onto Fifth Street and thence to its intersection with Second Avenue North, two blocks distant; a right turn onto Second Avenue and thence to its intersection with Fourth Street; a right turn onto Fourth Street, driving past First Avenue North and in the direction of Hennepin Avenue again; a right turn about a half block short of Hennepin Avenue into an alley running parallel to Hennepin Avenue from Fourth Street to Fifth Street. The officers, noting this curious route and assuming that their tailing presence had been discovered by the Chevrolet's occupants, followed into the alley. The Chevrolet stopped momentarily, at which time defendant got out of the Chevrolet; it then proceeded on to the alley's Fifth Street exit, where it was stopped by Officer Torrey. Defendant and her male companion were then brought into the squad car together, where a conversation ensued (the purported substance of which will be considered under point 3).

We consider, second, defendant's testimony accounting for her observed activity. She was...