Where the conviction of a defendant in a criminal case is based upon circumstantial evidence alone, the same is not sufficient to support the verdict unless the proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis except that of the guilt of the accused.
DECIDED FEBRUARY 1, 1949. Homer Blakeley was charged by accusation in the City Court of Columbus with vagrancy for that he did "wander and stroll about in idleness, being then and there able to work and having *Page 517 no property to support him, and did then and there lead an idle, immoral, and profligate life, having no property to support him and being then and there able to work and not working, and being then and there able to work and having no property to support him did not have any visible and known means of a fair, honest, and reputable livelihood."
He entered a plea of not guilty and on the trial a police officer of the City of Columbus and others testified that they had known the defendant for some time and that they did not know of any honest means of livelihood or regular consistent employment he has had during the past two years; that they had watched for him at certain given points in the City of Columbus for eleven days during a certain interval of time, and that they saw him seven of those days between the hours of 11 a. m. and 4 p. m.; that on these occasions he was not working although he was physically able to work in their opinion; that they had information that he was going to meet a pay roll at the Fourteenth Street Bank; and that after he did not meet the pay roll and rob the bank, he was arrested for vagrancy. These witnesses also testified that they did not know whether the defendant had regular gainful employment during the two years prior to his arrest or not but that he was not working between the hours of 11 a. m. and 4 p. m. on the seven days that they observed him.
There was testimony also that he owned an automobile and that the police department of the City of Columbus, having been informed that the defendant was engaged in narcotic traffic, seized the car and held it for twelve to twenty hours during which time they thoroughly inspected the car to see if it had a secret compartment where dope was stored in accordance with the information they had but the car had no such compartment and contained no narcotics.
Other witnesses for the State including an officer of Phoenix City, Alabama, a county officer there and an investigator for the Department of Public Safety of the State of Alabama testified in substance that the defendant resided in Alabama; that they had known him for a number of years; that they knew of no gainful employment that he had except that for a short period of time during the two years prior to his arrest he had worked at a night club there, and that they knew of no property he *Page 518 owned. These witnesses however testified that he could have been gainfully employed without their knowledge.
The father of the defendant testified that he operated a service station and store and that the defendant was employed by him to assist in the operation of this business for about one year prior to his trial. This testimony is not contradicted. However this witness also testified on cross-examination that on one occasion the defendant was drinking and that his conduct toward his mother was such that the witness called the officers. The witness denied that he told the officers that he wanted the defendant kept away from there and some of the witnesses for the State contradicted his testimony in this respect. However another witness testified that on several occasions he saw the defendant working at his father's place of business.
A witness for the defendant also testified that he operated a used car business at 14th and Broad Streets in Columbus where the defendant was arrested; that on the day the defendant was arrested his business there was to attempt to sell a motorcycle to the witness.
The defendant made a statement in which he said in substance that on the day of his arrest he was at the used-car place of business, 14th and Broad Streets, Columbus, to attempt to sell the proprietor of that business a motorcycle; that at the time of his arrest he was working for his father where he had been engaged for a "good while"; that prior to that he worked for the "Spider Web," a night club where other witnesses testified that the defendant had worked for a period of time; that at the time of his arrest the officer took his car and stored it in a garage and that he had to pay to get it released and that the arresting officer had threatened to put him in jail every time he came over to Columbus where he buys his clothes and other things.
The jury trying the case returned a verdict of guilty and the court imposed a sentence of 6 months confinement in jail, 12 months in the public works camp and a fine of $1000, the public works camp sentence to be served on probation conditioned upon the payment of the fine and the obedience of the defendant to the laws of the State.
The defendant filed a motion for a new trial on the general grounds only which the trial court, upon hearing, overruled, and this judgment is assigned as error. *Page 519 The evidence against the defendant is wholly circumstantial. The circumstances offered by the State to show that the defendant led an idle, immoral and profligate life without property to support him, and that being able to work he did not work and had no visible and known means of a fair, honest, and reputable livelihood, was the testimony hereinbefore related to the effect that certain witnesses watched for the defendant for a period of eleven days during which they saw him between the hours of 11 a. m. and 4 p. m. on seven of those days, also the testimony of other witnesses that they had known him for a number of years, that they knew of no gainful employment in which he was engaged and that they knew of no property that he had to support him.
In Snead v. State, 72 Ga. App. 792 (35 S.E.2d 319), it is held as follows: "The defendant was convicted in the Criminal Court of Fulton County upon an accusation which alleged that, in Fulton County, Georgia, on October 30, 1944, he `did wander and stroll about in idleness; was able to work and did not work, and had no property to support him, and further, that said accused was able to work, and did not work, and had no visible and known means of a fair, reputable and honest livelihood.' The evidence tending to connect the defendant with the offenses charged was wholly circumstantial, and was insufficient to exclude every other reasonable hypothesis save that of his guilt. His conviction, therefore, was contrary to law and the evidence, and the overruling of his certiorari was error."
A reference to the original record of file in the office of the clerk of this court discloses that the evidence in theSnead case, supra, was stronger from the viewpoint of the State than the evidence in this case.
Counsel for the State contends that the testimony of the defendant's father shows that the defendant had worked for him for about eight months prior to his arrest and that therefore this evidence, even if accepted by the jury, failed to cover the two-year period of limitations prior to the day of the accusation. Assuming, but not deciding, that the testimony of the father was so contradicted as to impeach him and entitle the *Page 520 jury to disregard his testimony, it must be borne in mind that it is not incumbent upon the defendant to carry the burden of proof and show that he was engaged in gainful employment. The burden of proof is on the State to show the defendant's guilt to a moral and reasonable certainty and beyond a moral and reasonable doubt. See Code, §§ 38-105, 38-110. Where, as in the instant case, the State seeks to carry this burden upon the introduction of circumstantial evidence alone, to warrant a conviction, the proved facts must not only be consistent with the hypothesis of guilt but must exclude every other reasonable hypothesis. See Code, § 38-109. In the instant case the defendant could have been working regularly at hours other than those when he was seen by the witnesses for the State as none of the State's witnesses profess to know the defendant well enough to testify that he was not so employed. Also their testimony does not disclose that any of them were in position to know what property, if any, the defendant owned.
Caution should be exercised by the courts in the trial of vagrancy cases, lest the purpose for which this statute was enacted be inadvertently extended to law-abiding citizens going about under the presumed protection of the law in the exercise of their inherent liberties. This sacred right should be zealously guarded by the courts and its violation never countenanced under the guise of law enforcement. See Underwood v. State, 13 Ga. App. 206 (78 S.E. 1103).
The evidence is not sufficient to support the verdict and the trial court erred in overruling the motion for a new trial.
Judgment reversed. MacIntyre, P. J., and Gardner, J.,concur.