Opinion
3 Div. 620.
January 15, 1929. Rehearing Denied February 5, 1929.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Allie F. Cleghorn was convicted of vagrancy, and he appeals. Affirmed.
Certiorari denied by Supreme Court in Cleghorn v. State, 219 Ala. 155, 121 So. 436.
Charge 2, refused to defendant, is as follows: "The court charges the jury that the burden of proof rests upon the State to establish the fact that the defendant has no property sufficient for his support, and that the defendant has no means of a fair, honest and reputable livelihood."
E. T. Graham and C. H. Roquemore, both of Montgomery, for appellant.
Before defendant can be convicted or before the burden of proof is placed upon defendant, it must be shown beyond a reasonable doubt that he has been guilty of violating one of the subdivisions of Code, § 5571. McLean v. State, 16 Ala. App. 196, 76 So. 480; Valverdi v. State, 21 Ala. App. 606, 110 So. 594; Reed v. State, 16 Ala. App. 646, 81 So. 138; Wallace v. State, 16 Ala. App. 85, 75 So. 633.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
At the May term, 1928, of the circuit court of Montgomery county, the grand jury returned an indictment against this appellant charging him with the offense of vagrancy. The indictment followed the Code form, and was sufficient. It appears from the record that he was tried and convicted; the jury assessed a fine against him of $350, to which the court added twelve months' hard labor for the county. From the judgment of conviction, he appealed.
The statute defining vagrancy (section 5571 of the 1923 Code) consists of numerous subdivisions; and this prosecution was predicated upon subdivisions 1, 2, 3, 4, and 13 of said section. The state, by its several witnesses, adduced evidence tending to show that the accused was an able-bodied man, able to work, but did not work, and other facts which, if believed, under the required rule, brought him within the terms of the statute, supra; the question of time or venue was not controverted. The defendant testified in his own behalf, and insisted that he did work and that he was in the dairy business with his father, etc. This conflict in the evidence presented a jury question, and there is no phase of this case which entitled the defendant to the affirmative charge as insisted by counsel for appellant.
It is insisted that the severity of the punishment imposed should effect a reversal of the judgment of conviction. This insistence cannot prevail, as the punishment imposed both as to the fine assessed by the jury and the additional punishment by the court were within the limits of punishment provided by the statute. and the presumption must prevail that the court and jury properly discharged the duty devolved upon them in this connection. It is so clearly evident that the court did not commit reversible error in any of the rulings complained of, there is no necessity to discuss the exceptions reserved in this connection. The case in the court below presented a question of fact only, and the verdict of the jury must perforce stand.
The refusal of charge 2 was without error. Section 5573, Code 1923; Wallace v. State, 16 Ala. App. 85, 75 So. 633. These authorities also render innocuous the exceptions reserved to the oral charge of the court.
There being no reversible error in any of the rulings of the court, and the record being regular in all things, the judgment of conviction appealed from will stand affirmed.
Affirmed.