McHenry v. State

ON MOTION FOR REHEARING.

BROOKS, Judge.

Appellant was convicted for being a vagrant, and his punishment assessed at a fine of $5. At a previous day of this term the appeal was dismissed, because it was not made to appear that appellant had been continuously confined in jail since appeal. However, it is made to appear by affidavits that he is now, and has been ever since his conviction, confined in the Dallas County jail. The facts are about as follows: The State introduced five or six officers, who testified that they saw defendant on the 17th of July, 1900, in the “south end” of the city of Dallas, and on other occasions within the last few months prior thereto in saloons there and in Ed Truelove’s saloon; had never seen defendant at work at anything; did not know where he ate or slept; did not know where his father lived. Sid McHenry testified that defendant was his son; that defendant was nineteen years old, and had lived with witness and his wife all of his life; that witness kept house, and defendant had always kept a room there, and eaten at his table; that witness was now, and had always been, able and willing to support defendant; that defendant worked regularly at different kinds of work, helped witness about his meat and vegetable market; defendant ate and slept at his house regularly; witness usually went home about 9 o’clock at night, and left at 4 in the morning; that he generally saw defendant at home at night. Harry Milner testified he was in the saloon business, and defendant worked for him four months this year; that he was an industrious boy, and left him on the 3d of July because witness could not afford to keep him longer. Ed Truelove testified that defendant worked for him in South Dallas, and was working for him on the 17th of July, when he was arrested; that he began work on the 4th, and continued to work until the 17th; defendant worked by the week, and he paid him regularly; that in his employment of defendant he had agreed to furnish him with board and lodging, and he did sleep and eat at his place of business. W. E. Tanner testified that he knew defendant, and knew his father and mother were able to support him, and had seen defendant at work several times in different places. Defendant testified that he was nineteen years old, and lived with his father and mother; that he was never idle more than a few days at a time since he was old enough to work; that he had worked for different factories, and for several different persons; had worked for four months for Harry Milner, and left him on the 3d of July, and began work for Ed Truelove, a saloon man, on the 4th of July, and continued until he was arrested on this charge; that his father was able to support him, and had never refused to do so. We do not think the evidence in this case shows appellant is a vagrant, within the contemplation of the laws and statutes of this State. Because of the insufficiency of the evidence to support the conviction, the judgment is reversed. Motion for rehearing is granted. Judgment reversed, and cause remanded.

Motion granted. Reversed and remanded.