Ex Parte Oates

A preliminary writ of habeas corpus was granted in this case by a member of our court on November 2, 1921, and made returnable November 9th, at which time the cause was submitted on behalf of both parties. We decline to discuss matters pretaining to the technical sufficiency of the complaint upon which the applicant was arrested, the presumption being that when objection to the sufficiency of such pleading is presented to the Corporation Court of the City of Breckenridge, its ruling will be correct; and that if not satisfied therewith an appeal can be taken to the County Court of Stephens County. It is the well settled rule that the sufficiency of the complaint and indictment will not be inquired into upon habeas corpus unless it appear that the accused has exhausted his remedies by appeal, certiorari, etc., or that the law under which the prosecution is brought is for some reason invalid.

Applicant is charged in the Corporation Court of Breckenridge, with vagrancy, under the terms of subdivision E of Art. 634, Vernon's P.C. He claims that said article was repealed by the provisions of what is commonly known as the Dean Law. A motion is made by our Assistant Attorney General to dismiss this application for the reason that it is shown that no trial has been had before the said Corporation Court of Breckenridge, and that no motion to quash or plea to the jurisdiction has ever been presented to said court, or an appeal to any other court of competent jurisdiction. This might be the better practice, yet in view of the fact that the validity of a statute is the only question involved, it seems to have been the rule of this court in such cases to grant the writ and determine the question if it is sufficiently presented by the record. Vernon's C.C.P., p. 108, subdivision 12. In Ex parte Smallwood, 87 Tex.Crim. Rep., no showing was sufficiently before this court of any facts upon which the validity or constitutionality of any law might be attacked.

The ground of this application is, as stated, that subdivision E of Art. 634 was repealed by the enactment of the Dean Law. We regret that we are unable to agree with applicant. He appears to be charged in the corporation court with being a vagrant, to-wit: one who deals in liquor and sells same. A vagrant is defined in the Century Dictionary as "one who strolls from place to place; one who has no settled habitation; an idle wanderer; an incorrigible rogue; a vagabond." We know of no definition of a vagrant seriously at variance from those quoted. We do not think it in consonance with reason or common sense to hold one a vagrant merely by reason of a single act of omission or commission. In our view one can become a vagrant only by reason of a course of conduct, a manner of life. It is entirely in keeping that one who pursues a business violative of public morals or common decency, or whose conduct ordinarily is violative of what might be demanded by good morals or citizenship, may be declared a vagrant, not by reason of one lapse, — but because such conduct has become habitual and been continued long enough to establish his character. This is said as a predicate to the expression of our view that the framers of the present vagrancy statute did not intend to say that a single illegal sale of liquor would be sufficient to make one a vagrant within the purview of that Act. The other paragraphs of Article 634, supra, are directed at those who pursue some business or course, or whose conduct fixes their character, and by which they properly become vagrants. This interpretation of the text of said statute, coupled with the rule of reason above referred to, would seem to justify us in the conclusion we have reached. If one who by reason of continued prostitution, or gambling or begging or trading stolen property, becomes fairly a vagrant, we see no reason for distinguishing one who pursues the business of illegally selling liquor. We, therefore, hold that to be a vagrant under this part of said subdivision E one must be shown to have been guilty of illegally selling liquor in enough instances or for such length of time as to justify the conclusion that such is his ordinary course of conduct, pursuit or manner of procuring a livelihood.

There is nothing in the Dean Law governing the pursuit of any illegal business or prosecuting one for engaging therein, or condemning any continued course of conduct. It merely makes penal single acts therein forbidden. We find nothing in the contention of applicant, and his application is denied and he is remanded to the custody of the proper officer from whose restraint he was released by reason of the bond fixed at the time of the preliminary granting of this writ.

Relator remanded to custody.

ON REHEARING. January 18, 1922.