The paragraph of the statute under which this prosecution was had, includes and excludes several things which cause it to present a serious question as to whether it can survive the crossing of the bar of due process. Its constitutional validity, however, is not here challenged.
The words "who has no visible means of support" set forth not a mere rule of evidence, but an essential element of the offense attempted to be created by the statute, and want of visible means of support must be proven before a conviction can be had for violating the statute. Visible means of support in this connection is such as is obvious, apparent or discoverable and excludes means of support, as, for instance, money, concealed and known only to the person charged with being a vagrant. Branch v. State, 73 Tex.Crim. R., 165 S.W. 605. Consequently, if the jury should have here believed that the defendant had the, theretofore undisclosed, possession of the money he said he had, their verdict should still have been "guilty." This provision of the statute may be harsh, but if it is to be softened by amendment, the legislature, not the Court, should do so. *Page 6