Brannon v. State
| Decision Date | 05 June 1917 |
| Docket Number | 6 Div. 155 |
| Citation | 16 Ala.App. 259,76 So. 991 |
| Parties | BRANNON v. STATE. |
| Court | Alabama Court of Appeals |
On Rehearing, November 20, 1917
Appeal from Criminal Court, Jefferson County; A.H. Alston, Judge.
Jim Brannon was convicted of vagrancy ad he appeals. Affirmed.
Allen Bell & Sadler, of Birmingham, for appellant.
W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.
The defendant was within his legal rights when he elected to try his case in this manner, and to present it to this court as is shown by the record, and the appellate court must search it for error. But where the record is in the condition of the record in this case, the appellate court will not undertake to specifically pass upon each exception noted, but will content itself with a general statement of the law applicable to the case.
The affidavit meets the requirements of the statute, and is sufficient. Brannon v. State, 12 Ala.App. 189, 67 So. 634.
The motion of defendant for a bill of particulars was properly overruled. Jones v. State, 136 Ala. 118, 34 So. 236. It was within the sound discretion of the court to permit the state's witness Austin to remain in the courtroom during the trial, and we see no reason for interfering with this discretion in this case.
Vagrancy, as defined by the statute, includes 13 different heads. Each of these separate heads constitutes vagrancy, or all together constitute vagrancy. In other words, if a person is a gambler, he is a vagrant, and if he is a gambler, and, in addition thereto, violates at the same time the other definitions as set out in the statute, he is still a vagrant. It is the crime of vagrancy that is denounced by section 7843 of the Code, and the subheads simply define what a vagrant is. If a person violate the least of them, he is guilty of a violation of the whole law against vagrancy. "The Legislature seems to have attempted to make that enumeration a classification or catalogue of the vagabonds and harmful parasites of society." Brown's Case, 4 Ala.App. 124, 58 So. 794. Realizing that in some cases the state could not produce affirmative evidence, where conviction should be had, the statute (Code 1997, § 7845) placed the burden of proof upon the defendant under certain circumstances, to wit:
"In prosecutions for vagrancy, the burden of proof shall not rest upon the state to establish the fact that the defendant has no property sufficient for his support, nor means of a fair, honest, and reputable livelihood, but whenever it shall be established by the proof in any prosecution under this chapter that the defendant has been guilty of wandering or strolling about in idleness, or living in idleness, and is able to work, or that such defendant is leading an idle, immoral, or profligate life, and that such defendant is able to work; or that the defendant, being able to work, loafs, loiters, or idles in the places named in subdivision three of section 7843 of this Code, or that such defendant is able and does not work, but hires out his minor children, or allows them to hire out, then, or in either of such events, a prima facie case of guilt is hereby declared to be established in all prosecutions under paragraphs 1, 2, 3, 4, 12, and 13 of section 7843 of this Code, and the burden of proof shall be upon the defendant to show that he has sufficient property from which to obtain a support, or sufficient means of maintaining a fair, honest, and reputable livelihood; and provided further, that in a prosecution under subdivision 13 of section 7843 of this Code, the defendant shall not be convicted if his parents, or those occupying that relation to him, are able to support him, and do support him, or that he is in bona fide attendance upon some educational institution, but if the evidence for the defendant is sufficient when considered together with all of the evidence in the case to raise a reasonable doubt as to his guilt, he shall be entitled to an acquittal."
It was competent for the state to introduce any evidence tending to show that the defendant had been guilty of wandering or strolling about in idleness, or living in idleness, and was able to work, or that the defendant was leading an idle, immoral, or profligate life and that such defendant was able to work, or that the defendant, being able to work, loafs, loiters, or idles in a city, town, or village or upon the highway or about a steamboat landing or railroad station or other public place, or any place where intoxicating liquor is sold, or that he was a gambler, or that the defendant was the keeper or proprietor or employé of a house of prostitution, or that he was a keeper, proprietor, or employé of a gambling house. Under the charge of vagrancy, it is competent to prove any fact tending to prove that the defendant has violated either or all of the 13 definitions, as set out in the statute.
It was therefore competent to prove that the Burton Hotel was a gambling house, and, if a witness knows, he can testify to the collective fact, just as a witness can say that a place is a drug store, or any other name descriptive of the business being carried on, and such witness can also testify to the kind and character of the furnishings and furniture in the house.
The defendant is not indicted for being a gambler, but is indicted for being a vagrant. Under section 7844 of the Code, vagrancy is made a crime, and section 7843 defines vagrancy. One of the definitions given is "any person who leads an idle, immoral, or profligate life, and has no property," etc. Under this definition, evidence that a person is the constant associate of gamblers, prostitutes, and other evil parasites on society, or that he is a hanger-on at a gambling house or house of ill repute, or idles in one of the places designated in the statute, is competent, as tending to establish the guilt of the defendant as charged in the indictment, to wit, that he is a vagrant. It therefore becomes a pertinent inquiry, in cases of this character, as to whom a defendant constantly associates with, and the character of his associates. If the defendant was on trial charged with being a gambler, and the charge was limited to that inquiry only, it would not be competent for a witness to testify that the defendant was a gambler within the meaning of the statute under which he was being prosecuted; but as to his associates it is different, as tending to establish the fact of his leading an idle, immoral, or profligate life.
The word "gambler" has a well-defined meaning, and in common parlance describes a well known avocation or calling. The universal dictionary defines it as "one who gambles; one given to gambling or playing for a stake"; in Words and Phrases it is said:
"In common parlance, a gambler is one who follows or practices games of chance or skill with the expectation or purpose of thereby winning money or other property." Buckley v. O'Niel, 113 Mass. 193, 18 Am.Rep. 466; Stearnes v. State, 21 Tex. 692.
The fact that he has never been prosecuted or convicted is of no consequence; that the profession of gambling is condemned by the laws of this state, and that the...
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LeFlore v. Robinson
...within the scope of but one of thirteen subsections in section 437 may be found guilty of the criminal offense. Brannon v. State, 1917, 16 Ala.App. 259, 76 So. 991. Second, a complaint is sufficient, under current Alabama procedure, if it simply charges that `A.B. is a vagrant.\' See note 6......
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Broughton v. Brewer, Civ. A. No. 5266-68-T
...within the scope of but one of thirteen subsections in section 437 may be found guilty of the criminal offense. Brannon v. State, 1917, 16 Ala.App. 259, 76 So. 991. Second, a complaint is sufficient, under current Alabama procedure, if it simply charges that "A.B. is a vagrant." See note 6,......
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...whereunder imputing guilt by association has some evidentiary scope. Toney v. State, 60 Ala. 97--'common prostitute'; Brannon v. State, 16 Ala.App. 259, 76 So. 991--gamblers, 'birds of a II. As to the two Braswell Hardware Company cases, at the outset we should point out that the sole circu......
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