Bisbee daily review., 1911-10-05
IS THERE \ CRIME
 CALLED VAGRANCY?
Validity of City Ordinance Questioned in WomaCk'S
 Case

The constitutionality of the city or. l dinance for the punishment of the
 crime of vagrancy was questioned yes
 terday afternoon by George H. Neale, counsel for the defendant in the case 1 of the city of Bisbee against ". T. Womacks, who had been arrested by | city officers on the charge of va | grancy. Judge High, before whom
 the case was tried, found the defend ant guilty and the defendant, through 1 his attorney, made a motion for a new trial. indicating the intention to ! take the issue up to higher courts. The contention of the defense was that the ordinance was uncOnstitu- tional because 1t provided a greater punishment than is provided by the | territorial statute covering the same offense In support of his contention he cited a case from Sf Southwest,
 in which it was held that city or dinance. passed by the city council 1 of El Paso for the punishment of gambling in that city, was unconsti. tutional because the punishment was
 greater than that provided in the | state law covering the crime of gambling.
 The punishment provided by the | Fl Paso ordinance was a fine of not less than s100 and not more than | $500, whereas the state law provided | punishment of a fine of not less | than BIO and not more than S25. The punishment imposed by the
 Bisbee city ordinance for the crime
 of vagrancy is a fine of $500 or three months Imprisonment or both in the
 discretion of the court. The terri 1 torial law covering that offense i'm. poses a punishment of not more than 90 days imprisonment. No fine is pro. vided
 Mir. Neale cited Texas and Ken. lucky cases in support of his con
 tention that where a certain offense
 is covered by a city ordinance and a territorial or state law and the city ordinance provides forpa greater pun.
 ishment than the territorial or state
 law, the ordinance is invalid.
 City Attorney E. J. Flanigan dis.
 puted the correctness of Mir. Neale's
 contention, asserting that a special
 provision in the territorial statute gives the city the power to punish
 vagrants in section 545, subhead 30 |, which provides that city council
 may punish yagrants by imprison ment not to exceed three months. He
 stated further that the general sta ute provides in section 590 that nc
 fine shall exceed S300 or three months imprisonment In reply tc
 the possible argument that where 1 punishment for a certain crime is provided for in both a city ordinance and the statute, that the defendant
 might be put twice in jeopardy fcI the same offense, the city attorney cited the provision where it is stated : that in such a case and event tho city is constitutionally authorized tC
 proceed in the prosecution. Tn re ply to this Mir Neale declared fhat there vas nothing in the organic law of the territory to warrant a prosecu D ton by a city in such a case.
 Mir. Neale further asserted tha | the alleged unconstitutioDality O
 the ordinance in question in provid ing for a greater punishment tkan tho territorial law imposed for the sam' offense. worked the notification o the entire ordinance.
 ? The court overruled Mir. Neslei ? demurrer on the ground of unconsti } nationality and the case proceeded At the conclusion Of the evidence foi the city. fhe defense offering none 3 the court found the defendant guilt B and imposed a fine of Se0 or 60 days
 A notice of motion for new tria