Traylor v. State , 100 Ala. 142 ( 1893 )

COLEMAN, J.

The defendants were convicted of vagrancy. The court overruled a demurrer to the complaint, and also overruled the motion of the defendant to exclude certain testimony. These are the two questions presented by the record for our consideration. That portion of section 4047 of the Code, under which the defendants were prosecuted reads as follows : “Any person., who, having no visible means of support, or being dependent on his labor, lives without employment, or habitually neglects his employment • ' must on conviction, for the first offense be fined,” &c. The complaint follows the statute, charging that affiant “has probable cause for believing and does believe that within twelve months before making this affidavit in said county Jerre Traylor, having no visible means of support, or being dependent on his labor lives without employment, against the peace and dignity of the State of Alabama,” &c. The demurrer is “that said warrant fails to allege substantially that the defendants were able-bodied, or physically able to follow some employment for support.” The facts stated as ground for demurrer might constitute a defense to the prosecution, but certainly it is not necessary to aver these in the complaint. The general rule is that when a statute creates an offense, prescribing its constituents, it is sufficient in an indictment to pursue the language of the statute.—Grattan v. State, 71 Ala. 344; Danner v. State, 54 Ala. 127, and many others cited in note to section 4370 of the Code. The complaint conforms to this rule, and the facts averred in the demurrer are merely such as might be offered in defense.

We think the principle declared in Boulo’s case, 49 Ala. 22 not in conformity with the general rule, and its adoption would lead to the proposition, that it is necessary to aver affirmatively not only the commission of the offense, but that the person charged was capable of committing the offense.

The State introduced testimony that defendants said they were fortune tellers, and some witnesses testified that defendants told their fortunes, but made no charges for telling fortunes. This evidence seajns to have been brought out in response to questions calculated to elicit such answers. There was no objection to the questions, but after the witnesses had answered the questions, the defendants moved to exclude the answers “on the ground that said testimony was inadmisible.” The law will not allow a party to wait without dissenting until the witness answers an improper question, and if favorable claim the advantage, but if prejudicial then move to exclude it. He can not thus speculate upon the answer to an improper question.'—McCalman v. State, 96 Ala. 98; M. & B. Ry Co. v. Kimbrough, Ib. 127. Moreover, we are not prepared to say, such testimony did not tend to support the charge of vagrancy.

Affirmed.