The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1878-02-20
The SUSPECTED FELoN ACT.
Judge Buskirk, Of the Criminal Court, De-
dares Ii to be Unconstitutional.
The Full Text of the Decision-rhe objsc-
tions Urged TO the Validity OF the
Act An Able and Co
gent Opinion.

C1teu.
Thomas Lockhart VS. John PRESLEY, sheriff
of Marion county
The plaintiff has filed in this court petl-
ton alleging that he is illegally and wrong
fully held in the Jail OF the county of Marion
and state of Indiana On the filing OF such
petition a writ OF habeas corpus was Issued,
and the body of the petitioner was produced
before me- The sheriff has made a return,
in which he states. in substance, that be is
the sheriff of this county. and officio the
Keeper OF the Jail of such county; that the
petitioner was arrested under an act zap
proved March l5 1877 )tehning the crime OF
vagrancy and providing pun shment there
for, and upon an examination had before the
mayor of said city had been adJudged guilty
of the crime of vagrabcy and sentenced to
imprisonment in the county Jail FOR 80 days,
and TO pay fine of - and costs OF suit;
that the prtitiOner hs0Iaiied and neglected
to pay the said fine and cost or Teplevin the
same, and that ne held the petitioner In the
iail under and by virtue OF tue commitment
made out by the mayor of said ci,y of Indi-
annapolis. The petitioner has demurred to
the return of The sheriff The demurrer
admits the truth OF the matters alleged in
the return. M formal or technical oblec-
ton is urged against the return, butt is very
earnestly commended that the act of the
legislature under which the petitioner was
arrested and convicted is unconstitutional,
and therefore void This presents for my
consideration and decision a question OF
great i'm portsnce. It is always embarrassing
for O nisi prius Judge 10 be called upon TO
pass upon the .nstitutiOnality OF an act OF
the legislature, but the duty has been i'm
posed upon me and must be performed.
have the consolation of knowing that il
err in my judgement such error may be
corrected in a few DAYS By the supreme
court, whose decision will be final and con
clusively binding, not only on this, but all
other courts in the state In determining
whether the act in question is in conflict
with the constitution of the state l shall
entirely disregard the consideration OF
whether the act il wise or unwise, beneficial
or injurious to ciety. These are questions
which exclusively belong TO the law making
power. Nor shall take into consideration
the question of whether he petitioner is a
good or bad man. The sole question is
whether he has been legally convicted. for ii
he has | have no power to dis
charge hun from the custody of the
sheriff who holds him under a warrant
made ont IN due form of law by a judicial
officer. who possessed power to adjudge the
petitioner guilty and to Issue such commit
ment, if the act in question is not repugnant
to some provision of tue fundamental law
of this state: and concsde that before a
court is jus'ii ii in declaring a law uncon
stitutOnal il should plainly. clearly and pal
pabiy appear 10 ba in conflict with some
other clause Of the constitution. This is well
settled by authority. (RiCe VS.. state, Ind
1872; Satkingvs state, Z Ind, 1926; M8Se va.
state, Ind. 3t2; Powers VS.. Brownel, "a
Ind. Ia; Lncas vs. Bond, "A Ind, 524 aud
numerous other Indiana cases The petition
er was a Judged guilty of the crime of va.
gfancy, which crime is defined and the pun
ishIsent fixed by the flrst section OF the act
in question, hence the cOnstitutionslity only
of the first section is involved. That section
is as follows:
AN ACT defining vegrancy and other often
ses therein specified, providing penalties.
an hOriZiug arrests O. suspected persons
without warrant. providing method of
examination authorizing search o. places
where unlawful practices are carried on, and
arrest OF i mates, without warrant, ana con-
ferring certain powers aud jurisdiction on
and justices, declaring it a cumulai i've
statute aud emergency, and containing
other provisions pertinent to the subject
IApprove' March Is. 18TH
Section |. BE IT enacted by the general as
sembly of the state of Indiana, That any
person, male or female, who shall have arrived
ut years OF discretion. who shall be found
WItnouI any hAei reNioehce, ana wlthout any
visible means of support, and idling away
their tim. and making no eti0ri 10 procure
employment, or who, being able bodied and
without means of support and living idly,
shall fail or refuse TO labor for compensation,
when labor l. offered: or vino shall bs wander
ing about from place 10 place, with no certain
place or abode, ami no sufii cient means 0f sup
port, and shall De lIvini. wi hout labor or
employment: or WHO snail be found lettering
or ldllns aDuut uppling n uses or beer ious es,
or OuIbuholngS, or bawdy houses, or
houses of bad repute, or lodging
or market hOu-es, or lumber yards, or
other unusual and improper places for orderly
and 1ndustriou@ persons to be, without being
engaged in some useful employment there.
Such persons, having no visible employment,
may be int rOgated by any police or peace
officer, and II such person shat fail or refuse
10 give satisfactory account of themselves
sufficient To relieve them Of reasonable Sus-
pieion OF being agrants, each rersOn NAV b.
taken before any mayor or justice OF the peace
for ex animation; and il, ON examination, " be
proved That such person Is subject TO any Of
the charges above specified, or shall fail 70 sat
1siactOrily show, on oath or otherwise, tha1 he
or she has means of su port, or in good faith
was seeking EMPLOY meut. and is emit led TO
pursue such effort for labor such person shall
ne adJucged vagrsnt by such mayor or JUS
Several objections are urged against the
validity OF said section. The first is that the
crime of vseTancy is not embraced by the
title. We think there is nothing in this OBJ
lection. See the following authorities: Bright
VS. Mccullough, q Ind, 223; Shoemaker VS.
Smith, 81 Ino., 1873; state vs.. Young, AZ Ind,
1856
The second objection is that il authorizes
an arrest without warrant 1t does not
appear whether the petitioner was arrested
with or without warrant, but in my opinion
no such question arises in this case as the
petitioner might have been legally convicted
although illegally arrested. such question
will have tn be raised in some other form.
The third objection is that Il confers Judi
cial powers on ministerial officers. This
objection relates TO the arrest and not the
conviction OF the petitioner and must be
presented in some other manner.
The fourth objection IS that the act in
question denies 20 a D. rson accused there
under of the right of trial by jury. This
right is secured by the constitution in all
criminal csses Article 1, section 10, Of the
constitution declares that 1.-The accused shall
have the right 70 public trial by an impar-
tiai jury" IL is not Necessary thar the night
should be expressly conferred by the act un
der examination. The real question is