supervision of the habitual criminals are not expressly authorized by statute. But in some of our States, in connection with the punishment of vagrancy, provision is made for the punishment of any "common street beggar, common prostitute, habitual disturber of the peace, known pickpockets, gambler, burglar, thief, watch-stuffer, ball-game player, a person who practices any trick, game, or device with intent to swindle, a person who abuses his family, and any suspicious person who cannot give a reasonable account of himself." 1 Laws of this character have been enacted, and the constitutionality of them sustained in Ohio, Maryland, Pennsylvania and Kentucky. The only serious constitutional objection to these laws for the punishment of habitual criminals is that they provide a punishment for the existence of a status or condition, instead of for a crime or wrong against society or an individual. If an individual has become an habitual criminal, i.e., that he has committed, and is still committing, a number of offenses against the law, for each and every offense he may be punished, and the punishment may very properly be made to increase with every repetition of the offense. But this person can hardly be charged with the crime of being a common or habitual law-breaker. After meting out to him the punishment that is due to his numerous breaches of the law, he has paid the penalty for his infractions of the law, and stands before it a free man.

There can be no doubt that constant wrong-doing warps the mind, and more or less permanently changes the character, producing a common or habitual criminal. But to say that the being an habitual criminal is a punishable offense, is to say that human punishment is endless, for it is an attempt to punish a condition of mind and character, which

1 Rev. Stat. Ohio, § 2108.

2 Morgan v. Nolte, 37 Ohio St. 23 (41 Am. Rep. 485); Byers v. Commonwealth, 42 Pa. St. 96; World v. State, 50 Md. 54; Commonwealth v. Hopkins, 2 Dana, 418.

only years of patient and arduous struggle can obliterate or change. The practical effect of such laws, when vigorously enforced, is to make of such a person an outlaw, without home or country, driven from post to post, for his habitual criminality is an offense against such laws of every community into which he may go, it matters not where the offenses were committed which made him an habitual criminal. Even the habitual criminal has a right to a home, a resting-place. If the hardened character of the criminal makes his reform an impossibility, and renders him so dangerous to the community that he cannot be allowed to live as other men do, he may be permanently confined for life as a punishment of the third, fifth, or other successive commission of the offense; he may be placed under police surveillance, as is the custom in Europe, and he may be compelled, by the enforcement of the vagrant laws, to engage in some lawful occupation. But it is impossible to punish him, as for a distinct offense, for being what is the necessary consequence of those criminal acts, which have been already expiated by the infliction of the legal punishment.

But the laws have been generally sustained, wherever their constitutionality has been brought into question. In criticising the objection just made, the Supreme Court of Ohio say: "The only limitations to the creation of offenses by the legislative power are the guaranties contained in the bill of rights, neither of which is infringed by the statute in question. It is a mistake to suppose that offenses must be confined to specific acts of commission or omission. A general course of conduct or mode of life, which is prejudicial to the public welfare, may likewise be prohibited and punished as an offense. Such is the character of the offense in At common law a common scold was

question.

indictable; so also a common barrator; and, by various English statutes, summary proceedings were authorized

1 Commonwealth v. Hopkins, 2 Dana, 418.

against idlers, vagabonds, rogues, and other classes of disorderly persons.1 In the several States in this country similar offenses are created. In some of the States it is made an offense to be a common drunkard, a common gambler, a common thief, each State defining the offenses according to its own views of public policy. In

2

such cases the offense does not consist of particular acts, but in the mode of life, the habits and practices of the accused in respect to the character or traits which it is the object of the statute creating the offense to suppress. A practical difficulty in enforcing snch laws would arise in determining what kind of evidence, and how much, it was necessary to convict one of being a common or habitual criminal. Conceding the constitutionality of the law which makes habitual criminality a distinct punishable offense, the position assumed by the Kentucky court, in respect to the quality and character of the evidence needed to procure a conviction under the law, cannot be questioned. The court say: "It is the general course of conduct in pursuing the business or practice of unlawful gaming, which constitutes a common gambler. As a man's character is no doubt formed by, and results from, his habits and practices; and we may infer, by proving his character, what his habits and practices have been. But we do not know any principle of law, which sanctions the introduction of evidence to establish the character of the accused, with a view to convict him of offending against the law upon such evidence alone. If the statute had made it penal to possess the character of a common gambler, the rejected testimony would have been proper. But we apprehend that the question whether a man is, or is not, a com

1 See Stephen's Dig. of Crim. Law, art. 193.

2 Morgan v. Nolte, 37 Ohio St. 23 (41 Am. Rep. 485). And it is also held to be constitutional to provide for the punishment of such offenses by a summary conviction without jury trial. Byers v. Commonwealth, 42 Pa. St. 89.

mon gambler, depends upon matters of fact his practices, and not his reputation or character; and, therefore, the facts must be proved, as in other cases.

"The attorney for the Commonwealth offered to prove by a witness, that the accused had played at cards for money,' since February, 1833, and before the finding of the indictment. The court rejected the evidence, and we think erroneously. How many acts there were, of playing and betting, or the particular circumstances attending each, cannot be told, inasmuch as the witness was not allowed to make his statement. Every act, however, of playing and betting at cards, which the testimony might establish, would have laid some foundation on which the venire could have rested, in coming to the conclusion, whether the general conduct and practices of the accused did, or did not, constitute him a common gambler. One, or a few acts of betting and playing cards might be deemed insufficient, under certain circumstances, to establish the offense. For instance, if the acccused, during the intervals between the times he played and bet, was attending to some lawful business, his farm, his store, or his shop, it might thereby be shown that his playing and betting were for pastime and amusement merely. Under such circumstances the evidence might fail to show the accused was a common gambler. Thus, while many acts of gaming may be palliated, so as to show that the general conduct and practices of an individual are not such as to constitute him a common gambler; on the other hand, a single act may be attended with such circumstances as to justify conviction. For example, if an individual plays and bets, and should at the time display all the apparatus of an open, undisguised, common gambler, it would be competent for the jury, although he was an entire stranger, to determine that he fell within the provisions of the statute. The precise nature of the acts which the testimony would have disclosed, had it been heard, is unknown; but we perceive enough to

convince us that it was relevant and ought to have been heard.

"The attorney for the Commonwealth offered to prove by a witness, that the accused had, within the period aforesaid, set up and kept faro banks and other gaming tables, at which money was bet, and won and lost, at places without the county of Fayette, where the indictment was found; and the court excluded the testimony. In this the court clearly erred. It makes no difference where the gaming takes place. If a person has gamed until he is a common gambler, without the county of Fayette, he may go to that county for the purpose of continuing his practices. In such a case it was the object of the statute to arrest him as soon as possible by conviction, and requiring the bond provided for in the sixth section of the act of 1833. The testimony should have been admitted." 1

1 Commonwealth v. Hopkins, 2 Dana, 418. In the following opinion is discussed the amount and character of the evidence required to convict one of being a common thief: "The act of the assembly under which appellant was indicted, provides that any evidence of facts or reputation, proving that such a person is habitually and by practice a thief, shall be sufficient for his conviction, if satisfactorily establishing the fact.' In order to justify a conviction of a party of the offense created by the act, there must be proof of either facts or reputation, sufficient to satisfy the jury that the party accused is by practice and habit a thief. The offense is but a misdemeanor, and it must, therefore, be prosecuted within one year from the time of its commission. It is necessary, in order to justify conviction, that the proof should establish the fact that the accused was 'a common thief' within one year before the prosecution was begun, and therefore, evidence of 'acts of larceny,' committed more than a year before the indictment was found, would not be admissible. Though the conviction of the accused of the larceny of a watch was within a year before this prosecution was begun, it was contended that, standing alone, it was not sufficient to prove that the accused was by habit and practice a thief, and that it was not admissible, unless connected with an offer to follow it up with other proof to the same point, and that, as no such offer was made, the criminal court erred in admitting it. It did not matter that the record of the conviction of the accused, of larceny in 1877, did not prove the whole issue. The court had no right to require the State's attorney to disclose in advance what other proof he intended to offer. While the record of conviction was not of itself legally sufficient