Several interesting questions are presented for consideration on this motion for rehearing. The writer has looked over the matter with some degree of interest, and tried to do so with care and caution, and has reached the conclusion that vagrancy is a present condition or status and not an abandoned condition or status. That a party may have been a vagrant in the past may not bar prosecution for keeping disorderly house, but if she has abandoned such vice, does not justify the prosecution for a present status of vagrancy. The statutes, articles 634 to 640, P.C., with reference to vagrancy, apply, especially with reference to common prostitutes, to a present and existing condition, not an abandoned condition. She may be at present a common prostitute, and has been for the past, continuing up to the present time. This would justify a prosecution for vagrancy, but if she has abandoned that life and is not now a vagrant, she is not subject to be taken up as a vagrant under the law. Such we understand to be a fair and reasonable and proper construction of the statute with reference to common prostitutes. It is not sufficient that she may have been in the past such a character, but that status of being a common prostitute must now exist to justify her arrest and detention. Where she has abandoned such a life and gone out into a different attitude and condition or relation, and is leading a different life, she is not a vagrant. She may be subject to prosecution for having kept a disorderly house, if such was a fact, but this would not justify a charge against her of being a vagrant. The offenses are different, sustained by different definitions of offenses by the Legislature, and necessarily involve different conditions and facts. See arts. 634, 637, P.C.; Pachal v. State, 138 S.W. Rep., 166; City of San Antonio v. Salvation Army, *Page 57 127 S.W. Rep., 860. The same reasoning would apply to a common gambler or keeper of a gambling house. The party may have kept a gambling establishment and subject to punishment for having done so, but had he abandoned such life and has ceased to carry on the gambling house, and gone out into other and suitable vocations, his condition as a vagrant had ceased. The fact that he kept a gaming house and had abandoned it is a different proposition from being at present a vagrant by reason of such fact. The statute with reference to vagrancy was passed to meet a present and existing condition, an arrest and prosecution of the party under such condition that is now a vagrant. See authorities above cited. The incubus upon society which constitutes vagrancy is a present status, not a past relation or condition. The abandonment of the vagrant's life ceases to make the party a vagrant, and arrest and prosecution for vagrancy is based upon a present status or condition that it does exist. If they are making an honest living or doing such work as relieves them of being a vagrant, the condition of vagrancy no longer exists. That the previous acts were illegal under some other statute might be true, but it does not apply to a present condition of vagrancy. See 20 Cyc., 1090; 22 Cyc., pp. 508-509; 14 Cyc., pp. 1093, 1096.
I am of the opinion, further, that the testimony does not show the accused to be a vagrant in that she was a common prostitute. The two sporadic acts of her going to Williamson County and having intercourse with some man in that county is not sufficient to show her a common prostitute. The fact that she slept with a paramour in Austin to the exclusion of other men would not make her a common prostitute. There is testimony that on two or three occasions she went out at night with male companions, but there is no testimony that she had intercourse with these men on these occasions. We think it would be not sufficient to hold that because she went out with some man at night that this constituted an act of prostitution. She may or may not have had intercourse with these men. The presumption is in her favor that she did not, for the law presumes her innocent. A presumption from these facts would be in her favor. In order to show that these were acts of prostitution there must be something more shown than the mere fact that she went driving with men at night, or absented herself with the men from the vehicle in which they rode. We think it would be carrying the proposition too far to say that because a woman went driving at night with a male friend that, therefore, she was a prostitute. The writer is not willing no to assert such proposition or opinion. It is not every woman who indulges in illicit intercourse that is a common prostitute, and under the authorities there is a wide divergence between a prostitute and a common prostitute. Springer v. State, 16 Texas Crim. App., 591.
The writer, therefore, is of opinion the affirmance should be set aside, *Page 58 the motion for rehearing granted, and the judgment reversed and the cause remanded.
Reversed and remanded.
PRENDERGAST, JUDGE, dissenting.