then the defendant summoned and given an opportunity for defense, then the evidence taken, to be followed by the conviction if the defendant is convicted, the judgment and the execution all according to the course of the common law, changing these terms to the statute law, where the statute has supplied the procedure.

VIII. Trial.

The subject of vagrancy, so far as it forms the subject of judicial investigation, receives more consideration in the jurisdiction over the offense and the offender and the sufficiency of the charge and the evidence in support than in the actual trial itself for the offenses, but there are cases, nevertheless, which throw light upon it by reason of the interpretation of the verdict. In Morton v. Nelms, 118 Ga. 786, 45 S. E. 616, it was decided that under the act approved August 17, 1903, an accusation charging that the accused was able to work, and had no property nor visible or known means of a fair, honest and reputable livelihood, set forth an offense against the penal laws of the state, and in such case a verdict of guilty meant that the accused was guilty of the acts specified in the accusation. In State v. Preston, 4 Idaho, 215, 38 Pac. 694, it was held that the following verdict was sufficient to sustain the judgment: "We the jury in the above-entitled cause, find the defendant guilty of being a vagrant at the time charged in the complaint." The intention of the jury could not be misunderstood from the language used. "Whether the jury found the appellant 'guilty' or 'not guilty' requires no construction of the wording of the verdict to determine. The verdict is not in the usual form prescribed by the Penal Code, but section 8236 of the Revised Statutes provides as follows: 'Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor any error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice in respect to a substantial right.' See, also, Kellum v. State, 64 Miss. 226, 1 South. 174; State v. Wilson, 40 La. Ann. 751, 5 South. 52, 1 L. R. A. 795. . . . . The verdict is sufficient to sustain the judgment: State v. Reed, 3 Idaho, 754, 35 Pac. 706; State v. Clark, 4 Idaho, 7, 35 Pac. 710." In Commonwealth v. Sullivan, 5 Allen, 511, to which we have before referred, it was held correct that the court refused to instruct the jury that the government must prove a habit of misspending his time indulged in by the defendant to a great extent; a constant, continual practice and mode of living and passing his time, or the principal part of it, and also refused, in answer to the express request of the defendant's counsel, to define to the jury what constitutes habitually misspending time by frequenting tippling-shops. In People v. Phillips, 1 Edmond's Select Cases, 386, also hereinbefore referred to, the procedure was well discussed by the New York court; and in Re Waters, 66 How. Pr. 173, the filing of the record of conviction of a prisoner on a charge of being a vagrant by a police justice in the office of the clerk of the general sessions of the peace in lieu of with the county clerk was held to be regular. Under the Code of Criminal Procedure, section 892, the filing in the latter office was the law, but that section was repealed or abrogated by the provisions of the consolidation act, Laws of 1882, chapter 410. The failure so to file the record would not have entitled the defendant to discharge, as that contingency was expressly provided for by section 1601 of the

consolidation act: In re Dorfmann, 21 Abb. N. C. 296. In People v. Warden of Workhouse, 37 Misc. Rep. 639, 75 N. Y. Supp. 1111, it was held that the Code of Criminal Procedure, section 515, which abolishes certiorari in criminal cases, applies to prosecutions for vagrancy, notwithstanding that section is in part 4 of the code, relating to prosecutions by indictment, and it is in part 5 the provisions as to vagrancy are contained. The same view was previously expressed by the court in People v. Cullen, 151 N. Y. 54, 45 N. E. 401. In Simmons v. State, 126 Ga. 632, 55 S. E. 479, upon the trial of one for the offense of vagrancy, it was charged in one count of the accusation that the defendant was a "professional gambler living in idleness"; the court did not err in refusing a request to charge the following: "Under the law of vagrancy, the gist of the offense is the failure or the refusal of the offender to work, when work is necessary to support himself."

V.

IX. Constitutionality of Statutes Dealing With Vagrancy. There is a strong consensus of opinion that statutes regulating the treatment of vagrancy are constitutional: In re Fife, 110 Cal. 8, 42 Pac. 299; State v. Noble, 20 La. Ann. 325; Matter of Glenn, 54 Md. 572; St. Louis v. Lee, 8 Mo. App. 599; State v. Kenilworth, 69 N. J. L. 114, 54 Atl. 244; Morris v. People, 1 Park. C. C. (N. Y.) 441; People Forbes, 4 Park C. C. (N. Y.) 611; People v. Fox, 77 App. Div. 245, 79 N. Y. Supp. 56; State v. Hogan, 63 Ohio St. 202, 81 Am. St. Rep. 626, 58 N. E. 572, 52 L. R. A. 863; State v. Maxcy, 1 McMull. 501. The Wisconsin "Tramp Law," chapter 342, Laws of 1883, was three times questioned as to its constitutionality. In Johnson v. Waukesha County, 64 Wis. 281, 25 N. W. 7, it was considered but not determined, and in Murphy v. State, 86 Wis. 626, 57 N. W. 361, a conviction was had under it. In Ryan v. Outagamie County, 80 Wis. 336, 50 N. W. 340, it was also adopted in that the authority of county boards to fix fees under the act was upheld, without any attack upon its general constitutionality.

While it is not competent for the legislature to punish mere idleness alone, without qualification, as constituting a vagrant, yet it is a competent exercise of its police power under the constitution to enact in subdivision 5 of section 537 (now in section 647) of the Penal Code that every lewd or dissolute person shall be punished as a vagrant, and that subdivision is not invalid because failing to define the constituent elements of the crime: In re McCue, 7 Cal. App. 765, 96 Pac. 110. Whatever may have been the views of those who doubted the power to enact such laws, there is indeed little room for doubt after reading Ex parte Strittmatter, 58 Tex. Cr. 156, ante, p. 937, 124 S. W. 906. A reference to it will show that Ramsey, J., entered into the spirit of the contention that the thirteenth amendment to the federal constitution, that neither slavery nor involuntary servitude shall exist in the United States except as a punishment for crime whereof the party shall have been duly convicted, prevented such legislation as was aimed at the punishment for vagrancy, and that the local act was contrary to the spirit, if not the tenor, of the Bill of Rights of Texas. We have not the space for lengthy excerpts from the case, nor do we feel that more information could be given by any attempt to further condense it. In a remarkably small space the learned judge has admirably given a succinct statement of the foundation on which the constitutionality of the statute rests. In the first place, the constitution of Texas, article 3, section 46, declares that the legislature

at its first session shall enact effective vagrant laws, and as put by the court, if they had not, there could be no question of the power. After paying a compliment to the learning of the contending counsel, the court suggested that the attention bestowed on the common-law definition of vagrancy, though interesting, was not applicable by reason of the holding that the statutes both of England and America have dealt so exhaustively with the subject of vagrancy that the common law has become unimportant: People v. Forbes, 4 Park. C. C. (N. Y.) 611. The power of the legislature, says the court, admits "of no sort of doubt," and confining his adjudication to the particular subsection before the court, the judge clearly and beyond answer lays it down that General Laws 31st Legislature, chapter 59, section 1, paragraph "d," which classes as vagrants all able-bodied persons who habitually loaf, loiter and idle in any city, town, village, railroad station, or other public place within the state for the larger portion of their time, without any regular employment, and without any visible means of support, is constitutional. With the remainder of the excellent opinion we have nothing to do here, but the court of criminal appeals of Texas is to be complimented and thanked for an authoritative decision which may be hereafter cited without hesitation and without fear that the line of its cogent reasoning can be diverted. In People v. Fox, 77 App. Div. 245, 79 N. Y. Supp. 56, an attack was made upon the constitutionality of the Greater New York charter of 1901. Under sections 707-710 thereof persons convicted of vagrancy shall be sentenced to the workhouse for six months; the superintendent of such workhouse is to transmit to the commissioner of correction within twenty-four hours a description of the person committed with all particulars of the offense and previous convictions within two years; these documents are to be recorded; after such recording, the case made by the documents is to be examined, and an order made discharging the offender five days after the date of commitment for a first offense; twenty days for a second; and if more than two, "at the expiration of a period equal to twice the term of his detention under the last previous commitment, but not in any event exceeding the period fixed by the warrant of commitment"; and providing that in all cases the warrant for discharge should be signed by the committing magistrate, and that in all cases the defendant should have an opportunity of disputing any alleged previous conviction. The constitutionality of the statute was properly upheld, as the sections referred to did not make the sentence uncertain, nor in any way disproportionate to the offense.

X. The Punishment for the Offense.

With each step in the proceedings, the importance of the subject to the lawyer decreases, although naturally the measure of punishment is of the greater proportion to the offender. We shall give, therefore, but brief attention to the decisions on sentences, merely supplying them so that the whole of the subject, which might well fill many times the number of pages to which we are constrained to limit it, may have been covered. In Baker v. State, 118 Ga. 787, 45 S. E. 617, it was decided that the act approved August 17, 1903 (Acts 1903, p. 46), was not applicable to a case made by an indictment charging acts of vagrancy on August 1, 1903, and that upon conviction of a person under such an indictment, the record failing to show the date of the return of the bill by the grand jury, a judgment sentencing the ac

cused in accordance with the law as it was prior to the amendatory act was legal. In Re Ryan, 45 Mich. 173, 7 N. W. 819, the defendant was committed under chapter 53, Compiled Laws, as a disorderly person to the state house of correction at Ionia, in default of finding sureties, which statute points out the way in which a defendant may be discharged. The command by the justice was to detain Ryan until he should find sureties or be then discharged by due course of law. The proceedings were to be taken in the county in which the person was tried and contemplated his continued presence there. The act No. 110 of the Session Laws of 1879, section 12, provides that persons convicted under said section 53 of the Compiled Laws may be sentenced to the reformatory at Ionia, and the effect of carrying that out was to prevent the defendant obtaining his liberty as intended. As the one statute did not expressly repeal the other, and repeals by implication are not favored, the court ordered the prisoner's release. In People v. Fox, 39 Misc. Rep. 591, 80 N. Y. Supp. 605, the defendant was convicted of vagrancy, by reason of having committed prostitution in a tenement house in the city. The magistrate had jurisdiction of the case and authority to impose the sentence. In the commitment, however, he stated that it was "pursuant to title 3, section 141, of the Greater New York charter," whereas in reality it was pursuant to title 3, section 141, of the tenement house law, supplemented, as to the form of punishment, by section 707 of the charter. The court did not think the misquotation was of sufficient importance to invalidate the commitment, since the magistrate was undoubtedly armed with the power to commit the defendant to the workhouse upon finding her guilty of the charge: Laws 1901, c. 334, sec. 141; Laws 1901, c. 466, sec. 707; People v. Flynn, 37 Misc. Rep. 90, 74 N. Y. Supp. 740. In People v. Coggey, 131 App. Div. 20, 115 N. Y. Supp. 836, it was held that a vagrant was not entitled to her discharge before the expiration of her commitment on the order of the commissioner of corrections without the order of the committing magistrate. The express provisions of the Greater New York charter (Laws 1897, p. 249, c. 378, as amended by Laws 1901, p. 298, c. 466, and Laws 1905, p. 1568, c. 638), section 710, provide for the correct method of her discharge. We have already referred to People v. Fox, 39 Misc. Rep. 591, 80 N. Y. Supp. 605, ante, division IX, "Constitutionality of Statutes Dealing With Vagrancy."

In State v. Custer, 65 N. C. 339, it was ruled that as the Revised Code required that the prisoner should be fined and imprisoned for twenty days, and also be required to find security for good behavior, and under the act of 1866 the court might fine or imprison or both, or sentence him to the workhouse, the two punishments were inconsistent, and that the two statutes could not stand together, and the second repealed the first. The verdict of not guilty was affirmed.

As stated throughout this note, we have endeavored to present in as small compass as possible the large topic of vagrancy, and have selected such cases as may be regarded as the leading ones for guidance. The subject was treated in a monographic note to In re Thompson, 38 Am. St. Rep. 643. We have made no mention of juvenile vagrancy, regarding it as rather for discussion at a time when juvenile offenders generally may be considered.

HAWKINS v. STATE.

[58 Tex. Cr. 407, 126 S. W. 268.]

THEFT-False Pretexts.-Under an Ordinary Indictment for theft, charging a fraudulent taking without the consent of the owner, it is competent to prove that the taking was with the owner's consent but obtained by false pretexts. (p. 971.)

THEFT-False Pretexts.-Where an Information contains three counts, first, swindling by false pretexts, second, ordinary theft, and third, theft by conversion as bailee, and the case is submitted to the jury on the second count, with evidence that the accused took money from the owner with his consent but by false pretexts, a conviction will be sustained. (pp. 970, 972.)

THEFT-False Pretexts.-One Who Obtains Money from another under the false pretext that he will obtain alcohol with it for the latter and return in a moment with it, but never returns, may be convicted of theft. (pp. 971, 972.)

THEFT-Instruction Singling Out Fact.-A court is not required in a trial for theft to single out a particular fact and elimin ate it from the consideration of the jury. (p. 972.)

THEFT-False Pretexts-Demand for Return.-In a prosecution for theft by obtaining money by false pretexts, it is not necessary to prove that demand by the prosecuting witness has been made for the return of the money. (p. 972.)

THEFT-False Pretext-Evidence.

In a Prosecution for

theft in obtaining money by false pretexts, evidence is admissible that after procuring the money the defendant, on meeting the prosecuting witness in the street, ran. (p. 972.)

B. F. Amonette, for the appellant.

John A. Mobley, assistant attorney general, for the state.

408 MCCORD, J. The appellant in this case has appealed from a conviction for theft wherein his punishment was assessed at a fine of forty dollars and thirty days' imprisonment in the county jail.

The information contains three counts: First, swindling by false and fraudulent pretexts and representations; second, theft of property under article 858 of White's Penal Code; and, third, theft by conversion as bailee. The case was submitted to the jury on the second count in the information, resulting in the appellant's conviction. A motion was made in the court below to quash the second count, and was also renewed in a motion in arrest of judgment. We are inclined 409 to think that the court below did not err in refusing to quash the second count as the same was drawn in the usual form as provided for ordinary theft. The facts in the case are about as follows:

One W. H. Terna, on the twenty-sixth day of December, 1908, was in the town of Nacogdoches. The appellant in this case, Jean Hawkins, approached the witness and asked him if he wanted some "red eye." The witness replied to him