Brannon v. State

SAMFORD, J. [1] The defendant was within his legal rights when he elected to try his case in this manner, and to present it to this court as is shown by the record, and the appellate court must search it for error. But where the record is in the condition of the record in this case, the appellate court will not undertake to specifically pass upon each exception noted, but will content itself with a general statement of the law applicable to the case. [2] The, affidavit meets the requirements of the statute, and is sufficient. Brannon v. State, 12 Ala. App. 189, 67 South. 634. [3, 4] The motion of defendant for a bill of particulars was properly overruled. Jones v. State, 136 Ala. 118, 34 South. 236. It was within the sound discretion of the court to permit the state’s witness Austin to remain in the courtroom during the trial, and we see no reason for interfering with this discretion in this case. [5] Vagrancy, as defined by the statute, includes 13 different heads. Each of these separate heads constitutes vagrancy, or all together constitute vagrancy. In other words, if a person is a gambler, he is a vagrant, and if he is a gambler, and, in addition thereto, violates at the same time the' other definitions as set out in the statute, he is still a vagrant. It is the crime of vagrancy that is denounced by section 7843 of the Code, and the subheads simply define what a vagrant is. If a person violate the least, of them, he is guilty of a violation of the whole law against vagrancy. “The Legislature seems to have attempted to make that enumeration a classification or catalogue of the vagabonds and harmful parasites of society.” Brown’s Case, 4 Ala. App. 124, 58 South. 794. Realizing that in some cases the state could not produce affirmative evidence, where conviction should be had, the statute (Code 1907, § 7845) placed the burden of proof upon the defendant under certain circumstances, to wit: “In prosecutions for vagrancy, the burden of proof shall not rest upon the state to establish the fact that the defendant has no property sufficient for his support, nor means of a fair, honest, and reputable livelihood, but whenever it shall be established by the proof in any prosecution under this chapter that the defendant has been guilty of wandering or strolling about in idleness, or living in idleness, and is able to work, or that such defendant is leading an idle, immoral, or profligate life, and that such defendant is able to work; or that the defendant, being able to work, loafs, loiters, or idles in tlip places named in subdivision three of section 7843 of this Cede, or that such defendant is able and does not work, but hires out his minor children, or allows them to hire out, then, or in either of such events, a prima facie case of guilt is hereby declared to be established in all prosecutions under paragraphs 1, 2, 3, 4, 12, and 13 of section 7843 of this Code, and the burden of proof shall be upon the defendant to show that he has sufficient property from which to obtain a support, or sufficient means of maintaining a fair, honest, and reputable livelihood ; and provided further, that in a prosecution under subdivision 13 of section 7843 of this Code, the defendant shall not be convicted if his parents, or those occupying that relation to him, are able to support him, and do support him, or that he is in bona fide attendance upon [261] some educational institution, but if the evidence for the defendant is sufficient when considered together with all of the evidence in the case to raise a reasonable doubt as to his guilt, he shall be entitled to an acquittal.” [6] It was competent for the state to Introduce any evidence tending to show that the defendant had been guilty of wandering or strolling about in idleness, or living in idleness, and was able to work, or that the defendant was leading an idle, immoral, or profligate life and that such defendant was able to work, or tliat> the defendant, being able to work, loafs, loiters, or idles in a city, town, or village or upon the highway or about a steamboat landing or railroad station or other public place, or any place where intoxicating liquor is sold, or that he was a gambler, or that the defendant was the keeper or proprietor or employé of a house of prostitution, or that he was a keeper, proprietor, or employs of a gambling house. Under the charge of vagrancy, it is competent to prove any fact tending to prove that the defendant has violated either or all of the 13 definitions, as set out in the statute. It was therefore competent to prove that the Burton Hotel was a gambling house, and, if a witness knows, he can testify to the collective fact, just as a witness can say that a place is a drug store, or any other name descriptive of the business being carried on, and such witness can also testify to the kind and character of the furnishings and furniture in the house. [7, 8] The defendant is not indicted for being a gambler, but is indicted for being a vagrant. Under section 7844 of the Code, vagrancy is made a crime, and section 7843 defines vagrancy. One of the definitions given is “any person who leads an idle, immoral, or profligate life, and has no property,” etc. Under this definition, evidence that a person is the constant associate of gamblers, prostitutes, and other evil parasites on society, or that he is a hanger-on at a gambling house or house of ill repute, or idles in one of the places designated in the statute, is competent, as tending-to establish the guilt of the defendant as charged in the indictment, to wit, that he is a vagrant. It therefore becomes a pertinent inquiry, in cases of this character, as to whom a defendant constantly associates with, and the character of his associates. If the defendant was on trial charged with being a gambler, and the charge was limited to that inquiry only, it would not be competent for a ■witness to testify that the defendant was a gambler within the meaning of the statute under which he was being prosecuted; hut as to his associates it is different, as tending to establish the fact of his leading an idle, immoral, or profligate life. The word “gambler” has a well-defined meaning, and in common parlance describes a well known avocation or calling. The universal dictionary defines it as “one who gambles; one given to gambling or playing for a stake”; in Words and Phrases it is said; “In common parlance, a gambler is one who follows or practices games of chance or skill with the expectation or purpose of thereby winning money or other property.” Buckley v. O’Niel, 113 Mass. 193, 18 Am. Rep. 466; Stearnes v. State, 21 Tex. 692. The fact that he has never been prosecuted or convicted is of no consequence; that the profession of gambling is condemned by the laws of this state, and .that the gambler has been condemned as an evil parasite on society is no reason why, by his acts, haunts, business, and associates, he should not be known for what he is and described by the proper noun. If the witness knows it is perfectly proper for him to testify that certain parties who were the associates of defendant, and that defendant associated with gamblers, and loitered in places where gambling was carried on; that he was the keeper, proprietor, or employe of a gambling house, and that these places were frequented by gamblers and lewd women. Robinson v. State, 15 Ala. App. 29, 72 South. 592. If a man had an office and practiced law, before the courts, a witness would be permitted to testify that the man was a lawyer, or, under this statute, to say that a place where the. defendant was found loafing was a railroad station or a steamboat landing. These are collective, evidentiary facts, material to ths issue, and it was not error for the court to permit proof. [9,10] It was perfectly competent to introduce evidence tending to show the character of the Burton Hotel and the Forrest Club; the defendant having been shown to be connected with these two institutions. It was also competent to show these facts by police officers. It was immaterial that there were other places in Birmingham that had not been raided. Minto v. State, 8 Ala. App. 306, 62 South. 376. [11] While it was error for the court to permit the witness to testify that he had sworn against the defendant in another case, such testimony was without injury, and was not reversible error. Lowman v. State, 167 Ala. 57, 52 South. 638. [12-15] It having been shown by competent evidence that Boone Kelly, one of the associates of defendant, was a .gambler, it was not reversible error for the witness to say that Kelly had the reputation of being a gambler, and, in this case, it is competent to prove the general reputation of the defendant’s associates. It was proper to show that Freeman, another of defendant’s associates, operated a gambling table at the Forrest Olub. It was competent to1 prove by those who had occasion to observe the daily walks of the defendant that he did no work. That is one of the material inquiries in the case. It was competent for.the witnesses to give the names of such men and women whom [262] they knew to be gamblers and lewd women that frequented the places with which the defendant was connected, and with whom he associated. There is no truer saying than that “birds of a feather flock together,” and, in this class of cases, the law recognizes it. Robinson v. State, 15 Ala.App. 29, 72 South.592. [16] It was also competent to show that at the Forrest Club a quantity of liquor was captured by the officers, when they made the raid. [17] The exceptions to the remarks of the solicitor are not well taken. Some of them are disjointed and disconnected, and not enough is set out for the court to pass upon upon them, and the others are entirely warranted by the facts. When the excerpts from the general charge of the court to which exceptions were reserved are taken and considered in connection with the whole charge, none of them constitute reversible error. The written charges requested by the defendant were properly refused. There is no error in the record, and the judgment is affirmed. Affirmed. 175 Ala. xxi.