Daily Republican., 1884-02-09
FOURTH EDITION.
THE THIEF ACT.
The Recent Law Passed by the
egisIature Pr0uunced UneOn.
stltutlOuAl.

1
The Recent Law Passed by TIM
LegisIsture Pronounced UnsOn
stitutional.
Court opened at 10 o'clock this morn.
ing, with the Chief Justice and Judg'
Houston On the bench. After severa
motions had been disposed Of, the opin
ion of the Court on the constitutionality
of the Professional Thief Act wa,
read by the Chief Justice as follows
This Is a motion to Quash 0n the ground
that there are no facts alleged to estab
lish larcenous acts or conduct, and
therefore the defendant has not by the
indictment the informs alton required by
the 7th section of the LIST article Of the
constitution.
| No such offense as that Of being a
common thief ex SITS at the common law.
In this State IL was made one by Stat
ute, passed on the 18th day of April
last there Is no question Of the power
Of the Legislature to make the being a
common thief an indictable offense, and
to provide for its punishment. The stat
ute is admitted, with qualification, to
be constitutional exercise oflegislative
power. But the defendants counsel in
sists that Notwithstanding this, the
Indictment Is insufficient IN not point
ing out specifically the acts of thievery
or larceny that make the prisoner a
common thief.
As the charge on which conviction is
asked is not that of specific larceny,
which is felony, but of being common
larcenor or thief, which is hut mis-
demeanor, the oflense is really that OF
being addicted to the acts If larceny.
Now it is obvious that such addicted
ness needs to b.. shown by proof OF re-
peated larcenous acts.
One or two only will not suffice ;
there must be enough more TO show Y
succession Of acts establishing course
Of behavior, or existing habit or prac-
tlce. The act, it ID true, provides that
The necessary profit may be Of reputa-
ton only. 1t is now, however, insisted
here that the charge in the indictment
could be sustained by such proof. 1t is
conceded that acts Of larceny must be
shown. The counsel on both sides are
then as one, SO far as requirements Of
! Suflc!eut proof Is concerned.
Although the indictment, as found,
il warranted by the statute in question,
and follows the authority given by it,
yet the prisoner y counsel contends thar
it Is, nevertheless, defective, and should
be quashed, because no specific acts of
larcency 10 make the prisoner COM
mon thief are given, and that the
attempt in this case by The Legislature
to designate what shall be sufficient to
be stated in an Indictment for being a
common .hief, is ultra vires, being in
violation of the section and article above
referred 70. That section il III these
words.
Act. !, Sec. 7. In all criminal prose-
su'ions the accused hath a right 10 be
heard by himself and his counsel, to be
fully informed OF the uature aid cause
OF the accusation against him, to meet
the witnesses in their examination, face
to face. 10 have compulsory process in
due time, on application by himself, liY
ri nds or counsel, for obtaining wit
neSseS III bis favor, and especially al
public trial by an impartial jlny.
Tho question then IL, can the Legis-
latnre provide by law what shall be
sufficient statement OF an oficlse in an
lndictnltnt ? The answer to it is,
that they can, proyided that they do not
violate the section quoted.
Should they do SO their act would 10
void. Was there such Il yiolatio, in
the case before rs ? This question must
be answered IN tie ailirnative-thel
first section Of the act declaring that
1t shall be necessary to charge in an
indictment only that the person is a |
common thief" This calls for an In. |
depreciation Of the above recitel See.
ton of the lsC article OF Tie CvustiJu-
tiOn.
There is 10 doubt The section Ia uucs-
ton, as well as lis predecessor (Act Z Of |
the amendments OF the Constitution of |
the United States was made 10 estab-
Iish permanently the common law rule
with respect tUindiCimeuts that evcrv-
thing necessary to inform a party oil
the charge alleged against him, should |
be set forth III them as time. place and
circumstances, etc.
The reason Of the common reuuire.
ment is sufficiently obvious. 1t would
he, indeed, Erltvous wrong if one
conld be lei to answer upon general |
criminal charge the commission of a |
crime where no facts were set forth that
went to make it. 1t is of the e,eencr Of
indictments that they Shall set forth !
everything necessary to make the Of |
tense Imputed, ana this WIN certainty |
OF time, place and circumstance, to the
end that the defendant may know what
accusations he IS to meet. This il n |
familiar law, common law ana sl,eak
ing generally always has been the law
Tor English people and their GesCen.
hants.
# III" offense against which ;he act
OF assembly in question was uassed |
We're Il common law crime, We should be |
governed in our decision by common |
law practice in prosecuting for it. But
there - no crime or misdeleanor at |
common law Of being u common thief. |
There are, believe, only two instance.
in all common law Jurisprudence of
oftenseS where person can be prosecu.
ted by Indictment for being common
offender OF any kind land they are very |
ancient. One is that of being a com |
mon creator, or mover, or promoter of
etc, and the other that of |
being common scold. In neither of |
these is it indeed necessary to set forth
any particular tac's that 20 to make IN |
the offence in the Indictment. These
cases, however. and that of keeping a |
bawdy house, are exceptions
to the general rule, az appear by the
of Justices Butler and
Ashburton in the case of j. Arson vs..
I. Il. 1893; at least the first is |
stated to be 80 by the former Judge.
The books treat them as such, but |
in these cases the prosecution is bound
to furnish the persons charged with a
statement of the facts upon (which he |
intends TO rely to establish his charge.
While, therefore, those cases are an
absolute exceptions to the re-.
quirement Of definiteness of statement
in an indictment, they are so qualified
by oath and they furnish no warrants
for the legislation of last session, or for
the Indictment in pursuance of it.
Even if the act provided for furnish
ing party charged with being com