Flandell v. State, 6 Div. 38.

• Decision Date: 30 June 1944
• Docket Number: 6 Div. 38.
• Citation: 31 Ala.App. 520,19 So.2d 401
• Parties: FLANDELL v. STATE.
• Court: Alabama Court of Appeals

19 So.2d 401

31 Ala.App. 520

FLANDELL v. STATE.

6 Div. 38.

Alabama Court of Appeals

June 30, 1944

Rehearing Denied Aug. 22, 1944.

Aaron Flandell was convicted of vagrancy, and he appeals.

Affirmed.

Appeal from Circuit Court, Jefferson County; John C. morrow judge.

Beddow Ray & Jones, of Birmingham, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and Forman Smith, Asst. Atty. Gen., for the State.

RICE Judge.

Appellant was charged with, tried for, and convicted of, the offense of vagrancy. Code 1940, Tit. 14, §§ 437, 438.

It will be noted that the Code Section defining "vagrants" (437 of Tit. 14, supra) has thirteen sub-heads.

On the trial of this appellant it was claimed by the State--and its undisputed testimony tended to support its claim--that he was a vagrant as described in subheads one, two, three or six of said Code Section. Of course if the testimony showed, in the required way, him to be a vagrant as described in any sub-head of said Code Section, he would be as guilty as if he were shown to be a vagrant as described in all of same--or any other one of same. Brannon v. State, 16 Ala.App 259, 76 So. 991.

For clarity we quote the four sub-heads of Code Section 437 of Tit. 14, of the Code of 1940, under which it was submitted to the jury to find appellant guilty vel non under the testimony in this case.

They are: (1) "Any person who wanders or strolls about in idleness, or lives in idleness, who is able to work, and has no property sufficient for his support"; and

(2) "Any person leading an idle, immoral, or profligate life, who has no property sufficient for his support, and who is able to work, and does not work"; and

(3) "Any able-bodied person having no property sufficient for his support, who loafs, loiters, or idles in any city, town, or village, or upon a public highway, or about a steamboat landing, or a railroad station, or any other public place in this state, or any place where intoxicating liquors are sold, without any regular employment"; and

(6) "Any person who is a professional gambler."

And it is well to note that (Code 1940 Tit. 14, Sec. 439): "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 * * * 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 (3) of section 437 of this title, * * * then, or in either of such events, a prima facie case of guilt is hereby declared to be established in all prosecutions under subdivisions [1, 2 and 3], of section 437 of this title (Code 1940 Tit. 14, Sec. 437, supra, we insert), 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 * * * but if the evidence for the defendant is sufficient when considered together with all the evidence in the case to raise a reasonable doubt as to his guilt, he shall be entitled to an acquittal."

We do not find it necessary, here, to decide whether or not the testimony for the State--there was none offered for appellant--was sufficient to be submitted to the jury on the single question of whether or not appellant was shown to be a "professional gambler."

The verdict of guilty returned by the jury was a general one; and of course could be referred to any sub-division or sub-head of the vagrancy statute under which the case was submitted to the jury, and the charge in which was sufficiently supported by the testimony.

Appellant's several written, requested and refused charges concerning his being "a professional gambler" are either argumentative, defective for singling out a part of the evidence, abstract, confusing, misleading, involved, or incorrect. He would seem to be laboring under the impression that unless the testimony showed him to be a "professional gambler" he was entitled to have the jury instructed to acquit him. But, as appears, such was not the case. There was error in refusing no one of his said charges.

As we have now, perhaps, already intimated, the undisputed testimony--which we do not see the necessity of detailing--amply supported the charge of vagrancy as it rested upon sub-heads 1, 2 and 3, of Code § 437, supra; said sub-heads having been already hereinabove quoted by us.

The zealous--perhaps over zealous--Solicitor conducting the prosecution for the State, below, elicited testimony as follows from Abe Goldstein, one of the principal witnesses for the State, viz:

"Q. Abe, did you ever have any conversation with him (appellant) during that period of time?" (The period of twelve months prior to the beginning of the prosecution.) A. I talked to him right on the corner * * * on the northwest corner of 4th Avenue and 20th Street one afternoon a few minutes.

"Q. What did you say to him, Abe? A. He just got through talking with somebody. I stopped there and says 'Mickey, why don't you get you a job and go to work and cut all this racket foolishness out?'

"Q. What did he say? A. He just laughed * * * he did not answer me * * * he just laughed, and didn't say a word."

Of course appellant interposed due objections, and reserved proper exceptions to all that Goldstein testified to in the regard shown by the quoted excerpts from the transcription of his testimony.

And perhaps we should note that Abe Goldstein was a detective for the City of Birmingham, one of whose...