State v. Starr

• Decision Date: 16 May 1941
• Docket Number: Criminal 897
• Citation: 113 P.2d 356,57 Ariz. 270
• Parties: THE STATE OF ARIZONA, Appellant, v. LEONARD STARR and LESLIE COMBS, Appellees
• Court: Arizona Supreme Court

113 P.2d 356

57 Ariz. 270

THE STATE OF ARIZONA, Appellant, v. LEONARD STARR and LESLIE COMBS, Appellees

Criminal No. 897

Supreme Court of Arizona

May 16, 1941

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment reversed and cause remanded with directions.

Mr. Joe Conway, Attorney General, and Mr. Albert M. Garcia, Assistant Attorney General, for the State.

Mr. V L. Hash, for Appellees.

OPINION

ROSS, J.

The appellees, Leonard Starr and Leslie Combs, were informed against by the county attorney for loitering, without a legitimate reason therefor, within three hundred feet of the grounds of the Longfellow public school, at which children were then in attendance, located in Phoenix, Maricopa County Arizona. They filed a motion to quash the information on the ground that the law under which it was drawn denies them due process, in that the crime therein created is so indefinitely defined as not to advise them of the dividing line between lawful loitering and unlawful loitering. This motion was sustained and from the court's decision the state has appealed, contending, of course, that the law is constitutional and does not deny due process.

The law was passed in 1939, and reads as follows:

"43-5902. Molesting school child. -- Any person who annoys or molests a school child, or who without legitimate reason therefor loiters on the grounds of any public school at which children are in attendance, or within three hundred (300) feet thereof, shall be deemed a vagrant, and upon conviction fined not more than five hundred dollars ($500), imprisoned in the county jail not more than six (6) months, or both." Arizona Code, 1939.

The information follows the language of the statute defining the offense and is good if the statute is valid. We think there can be no question of the right of the legislature to pass the law forbidding persons from loitering on school premises or within three hundred feet thereof, while being attended by school children. If there is a necessity, and of that the legislature is the judge, to thus protect school children against loiterers, that body unquestionably has the power to do so. The peace, safety and health of the children of school age, when menaced or threatened, certainly calls for the exercise of the police power of the state for their protection. The evils the law was intended to prevent are well known. About the time of its passage it was common talk that marihuana, a habit-forming drug, was being peddled to the school children of Phoenix and other parts of the state. It was passed to shield the children from such evil and others as bad or worse in their tendencies to corrupt the young boys and girls of public-school age.

Webster's dictionary defines "loiter" "To be slow in moving; delay; linger; saunter; lag behind." The word "loiter" does not signify anything bad or criminal except when given that significance in a criminal ordinance or statute.

California has a statute which was enacted no doubt for the same reason as ours. It reads:

"§ 647a. Vagrants. Schools and school children. Every person who annoys or molests any school child or who loiters about any school or public place at or near which school children attend, is a vagrant, and is punishable by a fine of not exceeding five hundred dollars or by imprisonment in the county jail for not exceeding six months, or by both such fine and imprisonment." Penal Code.

In Phillips v. Municipal Court of Los Angeles, 24 Cal.App. (2d) 453, 75 P.2d 548, 549, it was contended by defendant, who was on trial for violation of such section, that the second clause thereof was so uncertain and indefinite as to contravene the due process clauses of both the state and federal Constitutions. We quote with approval from the court's opinion:

"The first contention of the petitioner is untenable. The verb 'loiter' means 'to linger idly by the way, to idle.' As was said in the case of Robinson v State, 15 Ala.App. 29, 72 So. 592, '"Loitering" is a term having a well-recognized meaning in ordinary use, the collective acts constituting which all persons are familiar with.' As was said in the case of Ex parte Strittmatter, 58 Tex. Cr. R. 156, 124 S.W. 906, 907, 137 Am. St. Rep. 937, 21 Ann. Cas. 477, 'We think the terms "loiter, loaf, and idle" are wholly at variance with the occasional or even frequent presence of such public places by deserving persons who may be for the time being unemployed. It is difficult in matters of this sort by any language which the Legislature could have employed to have laid down a rule so definite and precise as not to be the subject-matter of criticism. In constructive legislation of this sort, along new lines, some difficulty will be found in so framing the definition as not by a strained construction, or even, perhaps, by a literal construction, to place improper and grievous burdens on deserving persons.'

"It is urged that it is unreasonable to compel all persons to forego the pleasure of loitering about any school or public place at or near which school children attend merely because some persons of evil disposition desire to do so. It will be observed that the law does not attempt to entirely prohibit...