Lewis v. State

• Decision Date: 20 December 1907
• Docket Number: (No. 816.)
• Citation: 59 S.E. 933,3 Ga.App. 322
• Parties: LEWIS. v. STATE.
• Court: Georgia Court of Appeals

59 S.E. 933

3 Ga.App. 322

LEWIS.

v.STATE.

(No. 816.)

Court of Appeals of Georgia.

Dec. 20, 1907.

Vagrancy—Evidence.

The evidence is wholly insufficient to support the verdict, and the trial court erred in refusing to grant a new trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 47, Vagrancy, § 3.]

(Syllabus by the Court.)

Error from City Court of Americus; Chas. K. Crish, Judge.

Enoch Lewis was convicted of vagrancy, and brings error. Reversed.

Howell B. Simmons and E. A. Nisbet, for plaintiff in error.

Zach Childers, for the State.

HILL, C. J. Enoch Lewis was convicted in the city court of Americus on an accusation charging him with vagrancy. The accusation contains in one count three classes of vagrancy as defined by the first, second, and third sections of the act of 1905, Ga. Laws 1905, p. 109. The evidence in the case is applicable to only the first and third classes of vagrants as described by the act: (1) "Persons wandering or strolling about in idleness, who are able to work, and have no property to support them." 3) "All persons able to work, having no property to support them, and who have no visible or known means of a fair, honest, and reputable livelihood." The act of 1905 is the re-enactment of what is known as the "Calvin Act of 1903, " with an unimportant amendment. Acts 1903, p. 46. This act enlarges somewhat the meaning of the term "vagrant." It declares that "visible or known means of a fair, honest and reputable livelihood" shall be construed to mean "reasonably continuous employment at some lawful occupation for reasonable compensation." In Hartman v. State, 119 Ga. 427, 46 S. E. 628, Mr. Justice Candler states that both under the old law and the amendment "the gist of the offense of vagrancy is the failure or the refusal of the offender to work when work is necessary to support himself or his family." And it may be said of the law generally, in the language of Mr. Chief Justice Simmons in Daniel v. State, 110 Ga. 916, 36 S. E. 293, that "the statute was enacted to prevent men able to work from idling and wandering about the community, and becoming drones or thieves, or charges upon the public." Now, what would be "reasonably continuous employment" is difficult to determine. Keeping in mind the mischief to be remedied and the purpose of the law, we think: any work or labor which is sufficient to furnish the means of livelihood to the laborer, if he has no family, as in this case, and to prevent him from wandering about in idleness, would be "reasonably continuous employment" as defined by the statute. The public is not concerned in the length of labor or the proceeds of labor. Its only object is to protect itself from the idler and the results of idleness. The solicitous inquiry of society which the penal statute requires to be answered is that of the master of the vineyard, "Why stand ye here all the day idle?"

The only question made by this record is: Does the evidence prove the charge of vagrancy? The accusation was filed September 5, 1907, and the proof of the labor performed by the accused during the year prior to the date of the accusation may be summarized as follows: During January and February he helped build a house, and composted the ground of a neighboring farmer. In March and April he worked for 12 or 14 days as a carpenter, for which he was paid $1 a day. In May he hoed cotton and cut oats for another farmer. In June and July he cut 14 cords of wood, and got out stock for a sawmill for which he was paid from $10 to $15. The evidence does not show that he was paid for all his work, but it does show that he was paid at the rate of $5 per month for the eight months just prior to his arrest. One witness for the state testified that while he lived near him he "worked all the time, " and the only time he saw him after he moved away he was standing on the roadside "with a hoe on his shoulder." According to this witness, instead of being an idler, he really was a type of labor, "The man with the hoe." The defendant stated that he worked constantly, giving the names of the persons for whom he worked. In Daniel v. State, supra, on facts showing the amount of work performed by the accused during the year much less than that disclosed by the facts in the present case, the Supreme Court held that the verdict was not warranted by the evidence; and in Hartman v. State, supra, a verdict against the alleged vagrant, when the labor was neither as continuous, as hard or as remunerative as here, was set aside as not supported by the facts. In this case the accused was without family, and his wants were probably few. He probably did not live in much luxury, but he lived without begging, and had a pig and a guu, and lived in a house. The witnesses declare that he was an ardent disciple of Isaac Walton, and was constantly seen going towards the river with his fishing pole on his shoulder, but that he was never seen with any fish.

We are sure that the evidence Is entirely insufficient to establish the charge of vagrancy. Doubtless on much stronger evidence a large portion of the population of our towns and cities could be declared vagrants. The community where this defendant was convicted must be exceptionally industrious, or has a very high standard of labor. The evidence shows that the defendant did some considerable work during every month prior to his arrest, and that his only relaxation from too constant toil in working crops, cutting and cording wood and building houses was in "plying his finest art to lure from dark haunts, beneath the tangled roots of pendant trees, " the alert and wary denizens of the river. Surely it will not be said that while thus engaged he was idling. If he was not successful, all the greater proof of his patient and hopeful labor. The individual members of this court know that fishing is far from idleness, and the court is unwilling to give its judicial approval to a verdict which even remotely so indicates.

Judgment reversed.

3 Gft. App. 326)

SMITH v. STATE. (No. 829.) Court of Appeals of Georgia. Dec. 20, 1907.

1. Criminal Law—New Trial—Evidence.

The error sufficient to warrant the grant of a new trial must be such an error as contributed to or caused the verdict complained of. A verdict of guilty would have been demanded in this case if the evidence objected to had been excluded, and a new trial need not be granted for the purpose of reaching the same result technically.

[Ed. Note.—For cases in point, see Cent. Die. vol. 15, New Trial, § 2207.]

2. Same — Evidence Improperly Obtained —Witnesses—Privilege—Statutes.

While one cannot be compelled to give evidence against himself, and evidence obtained by an illegal arrest and unlawful seizure and search of one's person is inadmissible, because the defendant is thus compelled to testify against himself, evidence obtained by illegal search or illegal seizure of one's property may be used in evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 876, 877.]

(a) The protection against self-incrimination, contained in Const, art. 1, § 1, par. 6 (Civ. Code 1895, § 5703), is entirely distinct from the rightguaranteed in paragraph 16 of the same article (Civ. Code 1895, § 5713). The Constitution protects a person both against being compelled to give testimony tending to criminate himself and against unlawful searches and seizures, but the two are entirely distinct.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 872.]

(b) While, in a prosecution for a violation of the law forbidding the sale of intoxicating liquors, a bottle of whisky forcibly taken from the person of the accused, if illegally arrested, would not be admissible in evidence against him because he might thereby be compelled to furnish testimony against himself, still, if he be legally arrested, whisky found at his residence or place of business would be admissible in evidence against him.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 14, Criminal Law, § 877.]

(c) One who sees another sell whisky in his presence may arrest without a warrant, and may seize the whisky in the possession of the defendant for the purpose of using it as evidence.

(d) It is only when by an unlawful search and seizure under an illegal arrest, the defendant is compelled to furnish incriminating evidence that such evidence is not admissible.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 877.]

(Syllabus by the Court.)

Error from City Court of Waycross; Jno. T. Myers, Judge.

Leon Smith was convicted of selling liquor without a license, and he brings error. Affirmed.

J. L. Sweat, for plaintiff in error.

Jno. C. McDonald, Sol., for the State.

RUSSELL, J. The defendant was convicted of the offense of selling liquor without a license. He insists that his conviction was illegal and unauthorized. He was tried by the judge of the city court without the intervention of a jury; trial by jury being waived. Two special exceptions are taken to the admission of testimony, and whether the defendant is entitled to a new trial is dependent upon these exceptions. In the fourth ground of the amended motion for new trial error is assigned on the admission of the testimony of the Sheriff Woodward that on the night of September 25, 1907, one Jack Dolan drove up in front of the courthouse in a drunken condition, and stated that he was going to find some "booze." This evidence was objected to by defendant's counsel as being mere hearsay, illegal, and inadmissible against the defendant, and for the reason that Jack Dolan was a competent witness, and was not produced, nor any foundation laid for the introduction in evidence of his sayings, and that his drunken condition rendered his statements of no weight and worthy of no credence. In the fifth ground of the motion it is alleged that the court erred in allowing the state to introduce in evidence the whisky claimed to have been taken from the defendant, over the objection that it...