
    STAUFER v. STATE.
    (No. 5283.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. Vagrancy &wkey;>3 — Fortune Telling — Sufficiency of Evidence — Advertisements.
    In prosecution for vagrancy under Pen. Code 1911, art. 634, evidence held insufficient to show that defendant was advertising as a clairvoyant, or as a prophet of coming events, or of having supernatural knowledge with respect to either present or future conditions, happenings, or events.
    2. Vagrancy <&wkey;i — Fortune Telling — Construction of Statute — “Vagrant.”
    To be a “vagrant” under Pen. Code 1911, art. 634, making “all persons who advertise and maintain themselves in whole or in part as clairvoyants,” etc., vagrants, a party must advertise himself as a clairvoyant, etc., for the purpose of maintaining himself in whole or in part.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Vagrant.]
    3. Vagrancy <&wkey;>l — Fortune Telling — “Vagrant.”
    A cabinet workman supporting himself by such work, and who was a regular certified commissioned Spiritualist, teaching and lecturing on Spiritualism, was not a “vagrant” under Pen. Code 1911, art. 634, even though he acted as a medium and charged for spiritual consultations, unless he was advertising himself as a clairvoyant or prophet of coming events or of having supernatural knowledge for the purpose of maintaining himself in whole or in part.
    
      Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    S. W. Staufer was convicted of vagrancy, and lie appeals.
    Reversed and remanded.
    Wrn. F. Robertson, of Dallas, for appellant. .
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted under an indictment, omitting formal parts, which charged he was a vagrant, in this, that he “did then and there unlawfully advertise and maintain himself as a clairvoyant, foreteller of future events, and as having supernatural knowledge with respect to present and future conditions, transactions, happenings, and events, contrary,” etc.

The article under which he was tried is 634, Branch’s Ann. P. C., denouncing vagrancy. The particular section in that act under which this indictment was framed reads as follows:

“All persons who advertise and maintain themselves in whole or in part as clairvoyants or foretellers of future events, or as having supernatural knowledge with respect to present or future conditions, transactions, happenings or events.”

It would seem from a reading of this statute that as prerequisite to vagrancy the person must advertise and maintain himself in whole or in part as a clairvoyant or fore-teller of future events, or he must advertise and maintain himself as having supernatural knowledge with respect to present or future conditions, transactions, happenings, or events. This being the statute, the evidence must correspond with and support the allegations in the indictment. These allegations did follow the statute. The evidence with reference to the advertisement is about as follows:

Marie Barnett testified as follows:

“There was a little sign in the room, in the hall, which said: ‘Spiritual consultation thirty minutes fifty cents; more than thirty minutes one dollar.’ ”

She also testified:

“Staufer gave me a little card, business card, reading as follows: ‘Phone Bell Haskell 7098. D. W. Staufer, Spiritualist. Private appointments by phone. Public Message Service every Friday night 8 o’clock, 505 Alcalde Street, Dallas, Texas.’ ”

Upon this it seems the state rested its case. There seems to have» been no other advertisement introduced in evidence. These do not show that appellant was- advertising as a clairvoyant, or as a prophet of coming events, or of having supernatural knowledge with respect to either present or future conditions. happenings, or events. As the advertisement is a necessary prerequisite to constitute the party a vagrant, the state must show in some way that he so advertised. The statute does not seem to contemplate that a man might be a vagrant under this peculiar phase of the law unless he had advertised as set out by the wording of the statute. It is thought to be a safe conclusion that a party would not be a vagrant without so advertising, and for the purpose of maintaining himself in whole or in part.

We are of opinion that the evidence does not justify the conviction. The evidence for the defendant is that he was a regular certified commissioned Spiritualist to teach the doctrine of such faith and organization, and that he did lecture, and may have acted as a medium. All this may be true; yet, unless he advertised for the purpose of making money out of it and for the purpose denounced by the statute, it would not constitute him a vagrant. The evidence seems to be un-controverted that he was a cabinet workman, and by such means supported himself. The only evidence that undertook to bring him within the statute from the pecuniary standpoint was that two witnesses testified they visited him at his room, and he charged one of them 50 cents and the other $1. This, however, would not constitute him a vagrant unless he was advertising himself as denounced by the statute.'

As the record presents itself, we are of opinion that the state has failed to make a case; wherefore the judgment will be re versed, and the cause remanded. 
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