The record-union., 1895-11-18
THE VAGRANT ACT AND INDIANS.
What the Superior and Police Courts
Hold.
Superior Judges Give Reasons for In.
tePprotation OF the Law as
They Read 1t.

1t is very unfortunate when any con-
tention as to the true meaning of the
law arises between courts. But one has
al lsen between the Superior and the
Police Court in this city, and it is one
that, unless it is adjusted, will result
in friction that will be costly for the
city and county, and may tend to de-
feat the ends of Justice
che Police Court tries charges of va
grancy. The yagrancy law eXcepts
from its operation California Indians.
This exception is in a parenthesis in
the body of the section. The Superior
Court to which appeals are taken from
the Police Court holds that the fact
that one charged with vagrancy is not
California Indian must be proved af-
fiTmatively. That it is a jurisdictional
fact, so to speak, and that if it is not
proved by the prosecution the case of
VaSrancy is not made out
On the other hand, the Police Court
holes that it is not necessary, proba
bly, because the magistrate can see
whether the defendant is or is not a
California Indian. Or, possibly, be-
cause 1t holds that it is for the defend
ant to set up and prove that he is a
California Indian.
Judge Davis of the Police Court is re-
ported TO have said in a recent case:
If Judge Hinkson'S decision is the law
it would result in the discharge of all
Vagrarts, and render the Police Court
absolutely powerless. 1t is absolutely
impossible to prove that the vagrants
are not California Indians. The law
does not require imposSibilities.
4 the same time in that cOurt a f
tempt was made to make the affirma-
tive proof, but the police officers would
not swear positively that the defend
ant, white man, was not an indian,
though from appearances they be-
lieVed ne was not.
The Superior Court feels that it is not
| understood in this matter. 1t holds
that II is easy to prove the fact re-
CURED to be set out, and it has stated
20 Record Union reporter its reasons
for it's ruling. These are, simply that
the fact is one pleaded in the Police
Court in the complaint, for the statute
requires it to be set out. Clearly, it was
the purpose of the Legislature to pro-
tect Indians from the operation of the
Vagrancy law, and hence the exception
was inserted in the law, which is one
| essential to pleaded and to be proved.
on appeal the court, not having the de-
feudant before it, must ascertain the
| fact from the record.
This is, in brief, as the Superior
| Court is understood, but it would prob
| ably phrase it more precisely and ac-
curately itself. The Judges are under
| stood to say, also that the courts have
uniformly held as is now held by it,
| ana that after examination of the
| question the District Attorney of the
county has reached the same conclu-
| sion reached by the Superior Court
In support of the statement that the
| ruling is sustained by the reasoning of
ether courts in similar cases, these in
stances are cited. not because they are
pTecedents merely, but because where
| several courts in distinct Jurisdictions
agree upon the same Interpretation of
| the law, it is good reason for believing
that it is the right Interpretation. and
| is supported by sound reason and the
rules of the law for the construction of
| statutes, which rules are the result of
| the experience Of mankind.
Said a New Jersey court: If the ex-
ception in the ordinance is merely pro-
viso, then the exception or proviso need
not be pleaded. (McGear VS. Wood
ruff, 333 n. j. Law, 213D Now in that
case the ordinance prohibited the stOr-
ing of distractions upon the sidewalk
| provided, however, that if travel be
| not obstructed or hindered thereby.
such time as may be necessary shall be
allowed for the handling and removal
OF such box, boxes, barrel or barrels,
| cOrdWOOd or other Obstructions, not eX-
| ceeding in all seven days"
| Again, in Vermont, it was held:
When a statute provided that if any
person shall, on the Sabbath, exercise
any secular labor, except such as works
OF necessity or charity, he shall be
| r11niShed etc A COMPLAINT not mega
tiving the exception was held to be in
sufficient. (State VS.. Baker, IS VT 1919
| So, too, in Georgia it was held like
| wise and the same rule WAS enforced