State v. Starks

• Decision Date: 04 May 1971
• Docket Number: No. S,S
• Citation: 186 N.W.2d 245,51 Wis.2d 256
• Parties: STATE of Wisconsin, Respondent, v. Barry M. STARKS, Appellant. tate 164.
• Court: Wisconsin Supreme Court

Page 245

186 N.W.2d 245

51 Wis.2d 256

STATE of Wisconsin, Respondent, v. Barry M. STARKS, Appellant.

No. State 164.

Supreme Court of Wisconsin.

May 4, 1971.

The defendant, Barry M. Starks, was found guilty by the trial court and convicted of vagrancy, pursuant to sec. 947.02, Stats.

On April 30, 1970, at 1 a.m., Officer William Lowe observed the defendant walking away from an unoccupied mobile home which was parked in the backyard of a residence in the 4000 block of West Wright street in Milwaukee. Upon being stopped and asked what he was doing, the defendant replied that he was just taking a walk and that he stepped over near the mobile home to 'relieve himself.' Officer Lowe determined that the defendant was about three miles from his home and noted he was carrying a flashlight and a pair of gloves. The defendant was arrested and taken into custody.

Later that day the defendant was brought before the misdemeanor court and charged with vagrancy. The defendant was represented by an attorney from the voluntary defender program. The trial court asked the defendant to explain why he had a flashlight and gloves with him. The defendant's explanation was unsatisfactory, and he was found guilty. The defendant was sentenced to the maximum of six months. The conviction was appealed to the circuit court of Milwaukee county, where it was affirmed. Defendant appeals.

William M. Coffey, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., William F. Eich, Asst. Atty. Gen., Madison, for respondent.

HANLEY, Justice.

The appeal raises these two issues:

(1) Is sec. 947.02(2), Stats., unconstitutional on its face; and

(2) Did the state fail to prove one of the elements of the crime?

We approach the issue of constitutionality mindful of the fundamental presumptions and rules of construction which run in favor of upholding a statute challenged on constitutional grounds. All legislative acts are presumed constitutional, and every presumption must be indulged to sustain the law if at all possible. ¹ If any doubt exists, it must be resolved in favor of the constitutionality of a statute. ²

When a statute is challenged as unconstitutional on its face, the court must make a logical and sensible construction in a reasonable sense. ³Question of Vagueness.

The most commonly accepted formula for determining whether a penal statute is too vague to give fair notice of what it prohibits is the one adopted by this court in State v. Zwicker (1969), 41 Wis.2d 497, 507, 164 N.W.2d 512, 517:

"* * * If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional."

Sec. 947.02(2), Stats., defines a vagrant as:

'A person found in or loitering near any structure, vehicle or private grounds who is there without the consent of the owner and is unable to account for his presence;'

While the appellant's attack is comprehensive in that each clause in the statute is alleged to be flawed by vagueness, it is nevertheless clear that the primary dispute revolves around the meaning of the word 'loiter.'

One line of cases which is relied upon by the state ⁴ concludes that the word 'loiter' presents no problem of definition. These cases hold that everyone knows that the word 'loiter' when used in its common and ordinary sense describes not simply one who stands, lingers or idles about but also one who stands, lingers or idles with some criminal purpose in mind. These cases hold that one whose physical conduct constitutes loitering is nevertheless not a loiterer within the ordinary meaning of the word, unless, in addition to such physical conduct, the loiterer is also harboring some criminal intent. These cases go on to hold that the word 'loiter' is not impermissively vague because everyone understands that it invariably carries the connotation of criminality.

There is a second line of cases relied on by the appellant. ⁵ These cases hold that in common and ordinary usage the word 'loiter' has no sinister meaning and implies no intent to engage criminal misconduct. The cases in this second series note that lay, as well as law, dictionaries contain no reference to the criminal connotation which the first series of cases contends is attached to the word 'loiter.' In Seattle v. Drew, supra, 70 Wash.2d at page 409, 423 P.2d at page 524, the following definitions were noted:

'(Merriam-Webster Third) New International Dictionary (1961) defines 'loiter' as

fritter away time * * * be * * * unduly slow in doing something * * * remain in or near a place in an idle or apparently idle manner

and 'wander' as

to move about without a fixed course, aim, or goal

* * *.

Black, Law Dictionary (4th ed. 1951) defines 'loiter' as:

To be dilatory; to be slow in movement; to stand around or move slowly about; to stand idly around; to spend time idly; to saunter; to delay; to idle; to linger; to lag behind.'

The cases finding no criminal connotation to the word 'loiter' include that statutes using that word are unconstitutional because they are so vague as to fail to give fair notice of what is and what is not prohibited by their terms. These cases hold that a statute which fails to give fair notice of what it prohibits is simply not a valid law.

There is a conflict among the authorities insofar as the meaning of the word 'loitering' is concerned, but that conflict is explained when one reads the remaining portions of statutes which the cases discussed above have construed.

The following cases cited by appellant contain examples of the kind of statute which is consistently found to be unconstitutional:

(1) Seattle v. Drew, supra. It shall be unlawful for any person wandering or loitering abroad after dark to fail to give a satisfactory account of himself upon demand by any police officer;

(2) People v. Diaz, supra. No person shall lounge or loiter about any street or street corner in the city; and

(3) Scott v. District Attorney, supra. A vagrant is anyone found in or near any structure, vessel or private grounds without being able to account for his lawful presence. ⁶

A comparison of the above statutes with the following examples from the cases relied on by the state reveals that statutes which have been sustained have been limited in scope, directed at preventing specific conduct, and with fair warning:

(1) Phillips v. Municipal Court of Los Angeles, supra. A vagrant is anyone who loiters about a school or any place where school children are present;

(2) People v. Merolla, supra. No person shall loiter on any vessel dock or other waterfront facility;

(3) State v. McCorvey, supra. A prostitute is guilty of vagrancy if found loitering in any saloon or other place where intoxicating liquors are sold; and

(4) Anderson v. Shaver, supra. A vagrant is anyone who loiters about on any public, private or parochial school grounds.

When the wording of the above statutes is compared with sec. 947.02(2), Stats., it is apparent that Wisconsin's vagrancy law falls into that category of statute which has almost invariably been found to be unconstitutionally vague. The state has not cited a single recent case in which a statute as vague and broadly worded as sec. 947.02(2) was upheld. The state's cases involve statutes which name with specificity and particularity the locations where loitering may not occur. Wisconsin's statute does not do that.

We think sec. 947.02(2), Stats., fails to meet the specificity requirements as to scope, place or purpose. Therefore, the use of the term 'loitering' in sec. 947.02(2) renders the statute vague as it fails to provide fair notice of the proscribed conduct, it classifies innocent conduct as criminal, and it is susceptible to arbitrary law enforcement.

We encounter difficulty not only with 'loitering' but equally with the mandate of sub. (2) that the person loitering explain his activity in a manner so as to comply with the phrase of accountability, to wit: 'unable to account for his presence.' That provision fails to give any indication of whether a defendant's presence must be 'lawful' or 'unlawful,' how much of an explanation is needed to add up to an 'account,' and whose demand for an 'account' may be enforced by criminal penalties.

Sec. 947.02(2), Stats., contains no useful standards for the police officer or the private citizen to know when an 'account' may be demanded.

The phrase 'in or * * * near any structure, vehicle or private grounds' is so sweeping and ambiguous as to render the statute unconstitutionally vague. The situation described by these words would be difficult for any person in a large community to avoid. In Scott v. District Attorney, supra, the court held substantially identical language was vague. At any point in time any individual is 'in or * * * near' at least one of the objects listed. The words could apply to window-shopping, waiting in a parking lot, or walking down any business or residential street. This sweeping applicability would result in arbitrary and standardless enforcement of sec. 947.02(2), Stats.

Question of Overbreadth.

Statutes which are unconstitutionally vague often suffer also from the defect of overbreadth. While a statute may often be found both vague and overbroad at the same time, nevertheless the two concepts are distinct. A statute is too vague when it fails to give fair notice of what it prohibits. It is overbroad when its language, given its normal meaning, is so broad that its sanctions may apply to conduct which the state is not entitled to regulate.

The fourteenth amendment of the United States Constitution protects persons from incursions by the state into certain areas of their life, and an overbroad statute is constitutionally defective if it extends state criminal authority beyond the proper reach of government into one of these protected private areas. Scott v. District Attorney, supra.

Sec. 947.02(2), Stats., fails to define with precision the distinction...