Thomas v. State
55 Ala. 260
Ala.
1876
Check Treatment
MANNING, J. —

A night-walker, simply as such, seems, by the old English law, to have been held to be a suspected person, rather than a criminal, and to be therefore liable to be arrested, and kept in custody until the next morning, and then to be taken before a magistrate for examination, who might require him or her to find sureties for good behavior, if under the circumstances that were thought proper. — 1 Burns’Justice, 942, title “ Eves droppers”; 8 Hawk. Pl. of the Cro. (7 Eng. ed. by Leach), 64, § 20; 2 Ib. 14. § 4; Lawrence v. Hedger, 3 Taunt. 14.

A common night-walker was sometimes liable to indictment also. — 3 Hawk. 78, § 64. But this was allowed, we presume, upon a further charge that he or she was a night-walker with some criminal or unlawful purpose or intent — as, for instance, to eve-drop men’s houses, “ to hearken after discourse, and thereupon to frame slanderous and mischievous tales;” “or to cast men’s gates, carts, or the like,’ into ponds, or commit other outrages or misdemeanors in the night ” (1 Burns’ Justice, ubi supra); or “ a woman walking up and down the streets to pick up men,” for lewd intercourse.' — Lawrence v. Hedger, supra.

2. In State v. Dowers (45 N. H. 543), an indictment was sustained, which charged that the defendant, a woman, “was a common night-walker, and from the said tenth day of July to the day of filing the complaint, during divers nights within the time aforesaid, did walk and ramble in the streets and common highways in the said city of Portsmouth, at unseasonable hours of said nights, without having any lawful business, and without any necessity therefor, against good mor-*262ais and good manners.” This was more particular in charging circumstances tending to show a misdemeanor, than the indictment before ns is; and the offense, it appears from the opinion of the court, was one declared to be such by statutes of New Hampshire. In this State, we have no statute on this subject; and recourse must be had to the common law for support of the indictment in this cause. We think that, according to it, there is not a sufficient charge of an evil or unlawful purpose in this indictment.

Judgment reversed, and cause remanded.