355 Mass. 203 | Mass. | 1969
This petition for a writ of error seeks to set aside a conviction in the Municipal Court of the City of Boston. The case was heard in the county court on the pleadings and return; no evidence was introduced. The single justice, without decision, reserved and reported the case to the full court.
The petitioner was convicted in September, 1964, under a
The petitioner’s position is that the relevant part of § 53 is unconstitutional on its face under arts. 1, 12, and 14 of the Declaration of Rights of the Massachusetts Constitution and under the due process clause of the Fourteenth Amendment to the United States Constitution because the statutory provisions do not state a crime for which punishment may be imposed and because they are unduly vague. A consideration of this argument requires an examination of the history and meaning of the term “common night walker” as used in the statute.
The phrase “night walker” apparently originated in St. 5 Edw. Ill, c. 14, where it was directed to suspicious strangers abroad at night. See also 2 Hawk. P. C. c. 10, §§34 and 58. The watchmen could arrest night walkers and commit them to custody until the morning. 4 Blackstone, Commentaries (21st ed.) p. 292. Likewise in 1660 the colonial laws of Massachusetts provided that the watchmen should “examine all Night Walkers after ten of the clock at Night (unless they be known peaceable inhabitants) to en-
Another colonial statute provided that a magistrate could commit a “common night walker.” Colonial Laws (1889 ed.) 187. It is this second statute which apparently formed the basis of G. L. c. 272, § 53. The relevant provisions of Rev. Sts. c. 143, § 5, and Gen. Sts. c. 165, § 28, did not differ significantly from the colonial statute. The first major change was the appearance of the phrase “both male and female” in Pub. Sts. c. 207, § 29. The addition of this phrase apparently was based on St. 1876, c. 118, which reads as follows: “Any male person who by night frequents the streets, highways or public places, or who goes about or abroad with the intent to entice, allure or invite any one to illicit sexual intercourse, shall be deemed a common night-walker, and shall be punished in the same manner as those now deemed common night-walkers are punished.” The remaining statutory history of .§ 53 is not material to the case at bar.
Another statute of significance is G. L. c. 277, § 79, which sets forth the form that a complaint or indictment may take for certain crimes. The suggested form for the indictment or complaint of a common night walker reads in part as follows: “That A. B., during the three months next before the making of this complaint, was a common nightwalker, habitually walking in the streets in the night time for the purpose of prostitution.”
The case law also indicates that the term has been given both a broad and a narrow meaning, with the latter becoming more prevalent. In Stokes v. State, 92 Ala. 73, 75, the court pointed out that a night walker has been defined both as one “who has a habit of being abroad at night for the purpose of committing some crime, of disturbing the peace, or doing some wrongful or wicked act” and as one who strolls the streets at night “for immoral purposes, or, as charged in the indictment, 'for the unlawful purpose of picking up men for lewd intercourse.’ ” See State v. Dowers, 45 N. H. 543; People v. Berger, 169 N. Y. S. 319; Black’s Law Dictionary (4th ed.) 1195. Generally, however, the term has “come to mean a prostitute who solicits men on the street.” 2 Wharton’s Criminal Law and Procedure, § 758. People v. Berger, supra, at p. 321. Our statute is not limited to females, since it specifically refers to males as well.
But the petitioner contends that the relevant part of § 53 is unconstitutional, even if “night walker” is not given its broadest meaning. He argues, for example, that if § 53 is intended to punish people who walk the streets at night for an illegal purpose (see State v. Dowers, 45 N. H. 543), the statute would aim at conduct which falls short of an attempt to commit a crime and hence is unconstitutional. A similar argument could be made if § 53 is interpreted as applying, like St. 1876, c. 118, to any male “who goes about or abroad with the intent to entice, allure or invite any one to illicit sexual intercourse” (emphasis supplied).
We are disposed to construe the statute more narrowly.
A construction suggested by the Commonwealth is that a person may be convicted as a night walker if he is "abroad at night attempting to allure someone to illicit sexual intercourse” (emphasis supplied). If § 53 is thus limited as prohibiting only the solicitation of people to have illicit sexual intercourse, the statute would describe conduct for which criminal punishment could be imposed. We so interpret the statute.
It has long been recognized that a statute "which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Constr. Co. 269 U. S. 385, 391. Commonwealth v. Carpenter, 325 Mass. 519, 521, and cases cited. But if a statute can be made constitutionally definite by a reasonable construction, the court is under a duty to give it that construction. United States v. Harriss, 347 U. S. 612, 618. See Demetropolos v. Commonwealth, 342 Mass. 658, 660. This was the course adopted in Alegata v. Commonwealth, 353 Mass. 287, 302-304, in upholding the “idle and disorderly” portion of § 53 against the charge of vagueness. Thus, construing the statute in the limited manner outlined above, we are of opinion that it is not void for vagueness.
So ordered.
This quotation from G. L. c. 277, § 79, is based on St. 1899, o. 409, § 28.
As we shall point out later, we construe the statute as requiring something more than mere intent.