State v. Grenz, 29822.

• Decision Date: 27 December 1946
• Docket Number: 29822.
• Citation: 26 Wn.2d 764,175 P.2d 633
• Parties: STATE v. GRENZ.
• Court: Washington Supreme Court

175 P.2d 633

26 Wn.2d 764

STATE v. GRENZ.

No. 29822.

Supreme Court of Washington, En Banc.

December 27, 1946

Rehearing Denied Feb. 24, 1947.

Fred Grenz was convicted of vagrancy, and he appeals.

Affirmed.

MILLARD C.J., and SIMPSON, ROBINSON and CONNELLY, JJ., dissenting.

Appeal from Superior Court, Spokane County; R. M. Webster, judge.

M. E Mack, of Spokane, for appellant.

C. C Quackenbush, Chester Chastek and Leslie M. Carroll, all of Spokane, for respondent.

MALLERY Justice.

At approximately 11 p. m. on June 21, 1945, a deputy sheriff of Spokane county was patrolling the Upriver drive which parallels the Spokane river just east of the Spokane city limits. His attention was attracted to a car parked in a wooded area off the traveled portion of the highway at a distance of some fifty yards. He examined it and found that it contained a number of gunny sacks, some with chicken feathers in them, and thereupon determined to await the return of the owner. After an hour he left to obtain assistance, returning shortly with two deputy sheriffs. They determined that the car was licensed to the defendant, Fred Grenz, and that it had been under surveillance for some time as one suspected of being used in chicken-stealing operations.

The deputies watched this car until approximately 1:30 a. m., June 22d, when the defendant came running toward it, got into it alone and drove away without turning on his lights until he swung eastward into the Upriver drive. It was known to the officers that Grenz' home lay two miles north and four miles west of where his car had been parked. Defendant took a southerly and easterly course as follows: east, one-half mile on Upriver drive; south, two and one-half miles on Argonne road; south, one and one-half miles on the Chester-Mica highway. Upon reaching 16th avenue, defendant extinguished his lights and again turned east. The deputies, with their own lights off, had followed at a distance of from two blocks to one-half mile, keeping his taillight in view.

The officers halted at 16th avenue to debate their next move. Then they also turned east into 16th avenue and had traveled only 250 yards when they saw the defendant stooped over with one hand outstretched toward the wires of a fence which paralled the south side of the avenue. The officers then flashed on their lights for the first time. In the resulting glare, the defendant was seen to run in a northerly direction away from the fence and toward his car which was parked headed into the timber, in a cul-de-sac on the north side of the avenue. The defendant stopped in the middle of the road in obedience to a command. The three officers then got out of their car and walked over to him. He was dressed in a pair of dark overalls, buttoned to the neck. Although the night was balmy, he was wearing dark gloves. His footwear consisted of a pair of rubber-soled shoes, commonly called 'sneakers'. In his left hand was an unlighted two-called flashlight, and under his left arm were two gunny sacks. In his pocket were found a quantity of short pieces of heavy string and some clothes pins. When asked, 'What are you doing here?' his only explanation of his presence was, 'What do you think?' Having told the officers that he had come directly from his home, which they knew to be untrue, they took him into custody.

An examination of the terrain revealed to the officers that the defendant's car was 33 feet north of the road, headed into an impassable wooded area and that the turtle-back of the coupe was open. On the south side of the road was a small farm which was bounded on the north by the aforementioned fence. At the point where defendant was surprised, the fence, although composed of hog wire below and two strands of barbed wire above, allowed ready access to the farm. The only buildings in the area were two chicken coops, the nearer of which was approximately 15 feet south and 132 feet west of where defendant was discovered. The farmhouse was 375 feet west of that point. Over 300 chickens had been stolen from this farm since January 1, 1945.

The defendant was charged with the crime of vagrancy under Rem.Rev.Stat. sec. 2688(8), P.C. sec. 9131, subd, 8, which provides: 'Every--* * * (8) Person who wanders about the streets at late or unusual hours of the night without any visible or lawful business; * * * Is a vagrant, and shall be punished by imprisonment in the county jail for not more than six months, or by a fine of not more than five hundred dollars.'

Trial was had Before a jury in the superior court. The defendant took the stand on his own behalf and testified that he had parked his car near the Upriver road while attending a 'weenie roast' down by the river; that after he departed from there, he was able, because of the bright moonlight, to see a car following him; that he was carrying over $3,000 in cash and consequently suspected that the occupants of the following car intended to rob him; that he drove out into the country to elude them; that after turning down 16th avenue, he intended to double back towards town and turned into the cul de sac thinking it was the road back; that finding himself there, he determined to elude his followers by rubbing out the tracks which his car had made in the sandy road; and that he used the gunny sacks for this purpose and was so occupied when discovered by the officers.

The jury brought in a verdict of guilty. Upon being sentenced to six months in the county jail, the defendant has taken this appeal.

The appellant operated a chicken ranch of his own which is of course a visible and lawful business. The appellant contends that the court erred in holding that it was not necessary for the state to prove that the appellant was without a lawful or visible business. Under the statute in question, it was necessary for the state to prove beyond a reasonable doubt that the appellant wandered about the streets at a late or unusual hour of the night without any visible or lawful business. The visible or lawful business that the appellant must have been proved to be without is that which is connected and concerned with his wandering about the street at a late or unusual hour of the night and is not concerned with his mode of making a living.

A part of California's vagrancy statute is identical with Rem.Rev.Stat. § 2688(8). In Ex parte McLaughlin, 16 Cal.App. 270, 116 P. 684, 685, the phrase in question was construed. We quote with approval from that case: 'By subdivision 6 of section 647, Penal Code, one of the definitions of a vagrant is: 'Every person who wanders about the streets at late or unusual hours of the night without any visible or lawful business.' As we construe this subdivision, the words, 'visible or lawful business' must be held as referring to the reason why such person is roaming the streets, rather than any business or avocation in life from which support is derived. In other words, the offense is complete under subdivision 6 if, without good or sufficient reason, one roams at late or unusual hours of the night, and he is a vagrant without any reference to his means of livelihood or vocation.' (Italics ours.)

We are further persuaded to this construction by the fact that a study of our vagrancy statute, Rem.Rev.Stat. sec. 2688 (P.C. sec. 9131) reveals that the legislature in enacting subdivision 8, under which appellant was charged, was not there concerned with 'means of support or livelihood', for subdivision 13 deals with this very matter, providing: 'Every--* * * (13) Person having no visible means of support, who does not seek employment, nor work when employment is offered to him; * * * Is a vagrant, * * *.'

Appellant's citations would be in point had the appellant been charged under Rem.Rev.Stat. sec. 2688, subd. (13), but they are not applicable where the appellant was charged under subdivision 8. As was said in State v. Harlowe, 174 Wash. 227, 24 P.2d 601, 603:

'At common law, vagrancy was defined as the wandering or going about from place to place by an idle person who has no lawful, visible means of support and who subsists on charity and does not work for a living, though able to do so. But both in England and in this country, the commonlaw definition has become largely unimportant by reason of particular statutes on the subject.

"It cannot be doubted that it is within the power of a legislature to define, subject to certain broad limitations, who may be a vagrant and to prescribe punishment for those who shall come within the meaning of that definition.' 8 R.C.L., p. 340, § 370.' (Italics ours.)

We think the evidence which showed that at the time of the arrest the appellant had a criminal intent, sustains the burden of proving that he was there without any visible or lawful business.

The appellant contends that the word 'street' as used in the statute is not broad enough to apply to a roadway outside of the incorporated limits of cities or towns. We have held otherwise. In Smith v. Drew, 175 Wash. 11, 26 P.2d 1040, 1044, we said: 'The jury was privileged to find, under the evidence, that appellant was prowling about and creeping up on parked automobiles and their occupants, in the nighttime, under circumstances which indicated an intent to commit a crime, and that his business in the community was not a lawful one. This constituted vagrancy under the statute Rem.Rev.Stat., § 2688(8). It is true that the scene of the events was outside the limits of Seattle, and to that extent the instruction was not entirely correct. This was a mere inaccuracy, however, and unimportant in any event. The act, if established, would constitute vagrancy, whether committed within or without the city limits.' (Italics ours.)

The appellant contends that the court erred in...