The appellant was convicted in the County Court of Wichita County for the offense of vagrancy and his punishment assessed at a fine of ten dollars.
The complaint charged a violation of practically all provisions as set out under the vagrancy Statute, but only three counts were submitted to the jury. These were subdivisions C, D and M, under Art. 634, Branch's P. C.
Appellant complains in his first and second grounds in his motion for a new trial that the evidence is insufficient to support the conviction. These complaints in our opinion are without merit. The testimony from the standpoint of the State is entirely sufficient in our opinion to show that appellant was an able-bodied person who habitually loafs, loiters or idles in a city without any regular employment and without any visible means of support. It is true that if his testimony *Page 3 had been credited by the jury they would have been justified in reaching the conclusion that his condition was due to no fault of his. But under the established rule of this State, the jury is not compelled to give credence to the testimony offered by an appellant in his own behalf, even though same be uncontradicted. Costello v. State, 266 S.W. 158.
By bill of exceptions No. 2 appellant complains because the court jokingly stated in the presence of the jury when the appellant's attorney advised him that the appellant had not reached the courthouse that perhaps appellant had gotten a job and gone to work. The bill of exceptions on its face shows that this was a jocular remark made by the court to the appellant's counsel and it also shows on its face that no exception was taken to the said remark at the time. The court qualifies the bill by stating that the remark was made in a spirit of fun to defendant's attorney and that no exception was taken to the remark and if it had been excepted to the court would gladly have given the proper instruction to the jury. Under these conditions we think the matter does not present reversible error. If appellant believed that the remarks of the court were improper it was his duty to except to them at the time they were made and give the court an opportunity to correct the mistake he had made by pertinently telling the jury to disregard them.
By bill of exceptions No. 3 appellant complains because the court refused his special charge No. 2. The substance of this charge was to tell the jury that even though they found and believed from the evidence that the defendant had been a vagrant as defined in the main charge herein, that they could not convict the defendant of vagrancy under the complaint in this case unless they found and believed from the evidence beyond a reasonable doubt that on or about the date alleged in the complaint, to-wit, on the 18th day of February, 1925, the defendant was at that time a vagrant, and unless they so found to acquit the defendant. The court in his main charge instructed the jury that if they found and believed from the evidence beyond a reasonable doubt that the defendant was at the time charged in the complaint a vagrant as defined herein, they might find him guilty and assess his punishment. In addition to this the court gave appellant's special charge which was to the following effect: "You are charged as a matter of law, that vagrancy is a present condition and status, and if you find and believe from the evidence, beyond a reasonable doubt, that the defendant on or about February 18th, 1925, had ceased *Page 4 to be a vagrant, if you find that he was a vagrant theretofore, as vagrancy has been defined heretofore in the main charge, you will find the defendant not guilty." We think this charge together with the court's main charge amply protected appellant in the matter complained of. Cox v. State, 205 S.W. 131; Levy v. State, 208 S.W. 667.
By bill of exceptions No. 4, appellant complains at the court's main charge because it submitted to the jury the question of whether or not the defendant was living an immoral and profligate life. The objection being that there was no testimony to support an allegation that the defendant was immoral or profligate. It may be conceded that the testimony showing these traits of appellant's character is more or less unsatisfactory but we are not prepared to say that the evidence in support of them is not to be found in the record. The record further discloses that he was seen on the streets at night with great frequency idling and loafing around at night and that he was an able-bodied man. We think the record is not so utterly lacking in testimony showing that appellant was immoral and profligate as to make the mere submission of this question to the jury reversible error.
By bill of exceptions No. 5, appellant objects to the court's main charge because the court gave to the jury the meaning of the term visible and known means of a fair, honest and reputable livelihood. The definition given by the court was in the exact language of the Statute. Subdivision C, Art. 634, Branch's P. C.
By bill No. 6 appellant complains because the court instructed the jury what it would take to constitute a vagrant under the allegation that he loafs, loiters, etc. The definition given by the court in this instance is also in the exact language of the Statute.
By bill of exceptions No. 7, appellant complains because the court permitted the witness McDonald to testify to the following facts:
"I have seen the defendant talking to gamblers and bootleggers. I know that they were gamblers and bootleggers because they paid fines for it."
The only objection offered to said testimony at the time it was offered was that said testimony was improper and because said testimony was a conclusion of the witness. We think this testimony as shown by the bill was not a conclusion of the witness. The party states directly and positively that the defendant was seen talking to gamblers and *Page 5 bootleggers and states positively that he knew that they were gamblers and bootleggers for the reason that they had paid fines for it. We hardly think this can be construed as a conclusion of the witness. In addition to what has been said, it is manifest from the bill itself that it is entirely insufficient to show any error. The bill merely states that upon the trial when the State was making out its case and while the State had the witness McDonald on the stand and after said witness had testified that he knew the defendant and after said witness had testified that he had seen the defendant at various places and various times in Wichita Falls, said witness was then permitted to testify over the objection of the defendant to the facts above set out. The above is a fair and complete statement of all the facts shown by the bill and a reading of the bill will readily disclose that the testimony objected to might under some conditions have been highly material testimony. If the defendant desired to have it excluded he should have let his bill show to this court sufficient facts to enable us to determine that error had been committed and failing to do this, we have no option but to say that the bill does not show error.
Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.