
    OLIVER v. STATE.
    (No. 9663.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1926.)
    1. Criminal law <&wkey;772(6)— Evidence held affirmatively to present theory that defendant charged with vagrancy was not able-bodied, requiring an affirmative instruction thereon.
    Evidence Mdi affirmatively to present theory that defendant charged with vagrancy was not able-bodied and, upon his request, jury should have been affirmatively instructed on the subject.
    2. Criminal iaw <&wkey;l038(3), 1056(1) — Where by exception to charge and by special charge attention was called to omission to affirmatively instruct, matter was properly brought up for review.
    Where court’s attention was directed to omission to give an affirmative instruction in prosecution for vagrancy, both by exception to charge and by special charge, the matter was properly brought up for review.
    Appeal from Lamar' County Court; W. Dewey Lawrence, Judge.
    Gurley Oliver was convicted of vagrancy, and he appeals.
    Reversed and remanded.
    Patrick & Eubank, of Paris, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is vagrancy; punishment fixed at a fine of $100.

It is charged that the appellant was an able-bodied person, who habitually loafed, loitered, and idled, without any regular employment and without any visible means of support.

Dr. Stark, introduced by the appellant, testified that he had been a practicing physician for 25 years; that he had examined the appellant and found that he was affected with rheumatism in the ankles, knees, and hips; that it was of long standing and chronic; that in consequence of this, it was the opinion of the witness that the appellant was not an able-bodied person. The doctor said that he had been an army surgeon or physician for three years, and had handled many cases similar to that of the appellant; that the disease was quite painful; that when first examined appellant was suffering and would have been sent to the hospital if it had been within his means.

The state called physicians who had not examined the appellant. They controverted the appellant’s want of capacity in opinions based upon hypothetical questions.

The theory was thus affirmatively presented that the appellant was not an able-bodied person, and upon his request the jury should have been given an affirmative instruction upon the subject. Both by exception to the charge and by special charge the attention of the court was directed to the omission, and the matter is properly here for review.

Because of the error pointed out, the judgment is reversed and the cause remanded. 
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