The exception to the charge goes to the paragraph in which the phase of the Statute containing the words "immoral and profligate life" was used. We think the objection to submitting that issue was quite specific. It is urged, however, that inasmuch as there is evidence in the case which support other phases of the vagrancy Statute, that the error in submitting that which was not supported by evidence is harmless. There was improperly admitted before the jury testimony of a witness to the effect that he had seen the appellant talking to persons whom the witness knew *Page 7 to be bootleggers and gamblers because they had plead guilty. This character of opinion was held improper in Ayres v. State, 254 S.W. Rep. 981, and upon the precedents there cited, should not have been received. Being before the jury, however, it was possibly and probably appropriate on the issue of in-moral or profligate life. Appellant had previously been convicted of vagrancy which, according to his testimony, had resulted in his dismissal from the employment that he had continuously been engaged in prior to that time. Since that time, according to his testimony, he had worked for persons whom he named and had diligently endeavored to find employment. This is not disputed, and the persons whom he claims to have worked for were not called on to contradict him.
The State's case consists of the fact that officers had seen the appellant at various times during the day and night in the colored portion of the town; that they had never seen him at work; that they knew of no property that he owned, and were aware of no visible means of support. It is not claimed that he had any means of support save his labor, and it is not to be said that one who is dependent upon his labor alone is to be condemned as a vagrant because he is involuntarily and temporarily idle. This matter is discussed in Harris v. State, 229 S.W. Rep. 875, and authorities there cited. In that case it is said:
"The Statute applies to those who habitually loaf, loiter, and idle, but not to one whose idleness is temporary and involuntary. Ex Parte Strittmatter, 58 Tex.Crim. Rep.,124 S.W. 906, 21 Ann. Cas. 477."
The State's evidence does not impress us as being so cogent as to render harmless the receipt of improper evidence or the submission to the jury of a phase of the information unsupported by the evidence.
The State's motion for rehearing is overruled.
Overruled.