Ex parte McCarthy

Searls, C. J. The petitioner, Alice McCarthy, was; convicted of vagrancy in the Police Court in and for the city and county of San Francisco, and upon an appeal to the Superior Court the judgment was affirmed.

She now asks to be discharged, upon the ground that the complaint against her stated no offense of which the court could take jurisdiction, and hence that the judgment is void.

The substance of so much of the complaint as is necessary to be stated is, that Alice McCarthy, on and from the twenty-sixth day of April to the twenty-sixth day of May,. 1887, at the city and county of San Francisco, committed, a misdemeanor, and during said period “willfully and unlawfully was, has been, and during said time continued to be, and still is, an idle and dissolute person, who. wanders and roams, and has during said time wandered and roamed, about the streets of said city and county, at, late and unusual hours of the night.”

Section 647 of the Penal Code, under which petitioner was convicted, specifies various acts as constituting vagrancy, among which are common prostitutes, common drunkards, etc., including, also, idle and dissolute persons who wander and roam about the streets, etc., using the-language of the complaint herein.

The first clause of the section is in the following language:—

“ Every person (except a California Indian) without visible means of living, who has the physical ability to work, and who does not for space of ten days seek employment, nor labor when employment is offered him; [386]every healthy beggar who solicits alms as a business, . ... is a vagrant.”

The contention of petitioner is, that the statute is to be construed in the light of this first clause, and as though its requirements were repeated in connection with each of the other acts defined as constituting vagrancy, and that to charge a defendant with being a common drunkard, a healthy beggar, an associate of known thieves, etc., is not sufficient to constitute him a vagrant, without further charging him to be without visible means of living, etc.

I do not so construe the statute. It enumerates in several groups certain acts which shall constitute vagrancy, and he or she who is guilty of the acts thus enumerated in any one of these groups is liable to the penalty of the statute. (People v. Frank, 28 Cal. 508.)