
    6953.
    ELDERS v. THE STATE.
    A verdict finding one guilty of vagrancy is unsupported when there is no proof that the accused was able to work, and where it is not shown that he did not have means ample for 'his support.
    Decided March 24, 1916.
    Indictment for vagrancy; from Taliaferro superior court — Judge Walker. September 21, 1915.
    
      L. A. Burton, J. A. Beazley, for plaintiff in error.
    
      B. G. Norman, solicitor-general, contra.
   Russell, C. J.

The accused was charged with the offense of vagrancy. The presentment alleged in distinct counts that the defendant led an idle, immoral, and profligate life, having no property to support him, being able to work, and failing and refusing to work; that he wandered and strolled about in idleness, and had no visible or known means of a fair, honest, and reputable livelihood; and that he was an able-bodied person, found begging for a living, and had quit his house and left his wife and children without means of subsistence. Without reciting all the counts of the accusation, it is sufficient to say that each of the counts charged that he was able to work and had no property to support him, and no “visible means of a fair, honest, and reputable livelihood.” Penal Code, § 449. There was no proof that the accused was more than sixteen years of age, but, assuming that he had passed that age, there was absolutely no testimony to the effect that he was able to Avork, and none that he was in such financial condition as that he Avas obliged to work to obtain the means of a fair, honest, and reputable livelihood. The State did not prove that the defendant had not worked. Three witnesses testified to facts which indicated that they did not know of his having worked, but none of them testified that he did not actually work, or to such a state of facts as compelled an inference to that effect. One of the witnesses for the prosecution testified that the defendant worked with him, “and was a pretty good hand,” from the first of January to the 18th of June, and that he paid all he owed .the accused, although the accused left the witness some time before his time was up. This Avitness did not testify that the accused spent his Avages and did not save them, and might not have had money sufficient for his needs betAveen the 18th of June and the date in the following month of July, Avhen he was arrested as a vagrant. The other two witnesses for the State merely testified to the fact that they did not see the accused at work. It seems that he had gotten his shoulder out of place a short time before he was arrested, but several witnesses testified to having employed him for two or more days at a time, and that they paid him for these services at the customary rate. The case falls under the ruling of the Supreme Court in Mims v. State, 38 Ga. 574, and under the rulings of this court in Jacobs v. State, 1 Ga. App. 519 (57 S. E. 1063), and Lewis v. State, 3 Ga. App. 322 (59 S. E. 933), and cases therein cited.

The learned trial judge erred in overruling the motion for a new trial. Judgment reversed.  