
    Ex parte OATES.
    (No. 6687.)
    (Court of Criminal Appeals of Texas.
    Nov. 23, 1921.
    Rehearing Denied March 22, 1922.)
    1. Habeas corpus <&wkey;3, 4, 92(1) — Complaint and indictment n>ot considered unless accused' has exhausted remedies' by appeal, certio-rari, etc., or statute is invalid.
    In habeas corpus, unless it appears that accused has exhausted his remedies by appeal, certiorari, etc., or that the law under which prosecution is brought is invalid, the sufficiency of the complaint and indictment upon which the prisoner was arrested will not be considered.
    2. Habeas corpus &wkey;?34 — Granted to determine validity of statute, although no objection nor appeal has been taken.
    Although no trial has been had, and no motion to quash or plea to the jurisdiction has ever been presented to the court, and no appeal has been taken, the rule is to grant the writ where the only question involved is the validity of the statute under which petitioner is held, and determine the question if it is sufficiently presented by the record.
    3. Intoxicating liquors <&wkey; 132 — Vagrancy <&wkey; I — Statutes concerning vagramcy not repealed by Dean Law.
    The Dean Law, concerning illegal sale of liquor and making illegal single acts therein forbidden, does not apply to a course of repeated acts in selling liquor so as to repeal Vernon’s Ann. Pen. Code <1916, art. 634, subd. “e,” providing that one dealing in and selling liquor shall be guilty of vagrancy.
    4. Vagrancy <&wkey;I — ''“Vagrant” defined.
    A “vagrant” is “one who'strolls from place to place; one who has no settled habitation; an idle wanderer; an incorrigible rogue; a vagabond.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Vagrancy-Vagrant.]
    5. Vagrancy &wkey;>l — To be guilty of vagrancy for illegal sale of liquor, the number of acts must be such as to establish a course of con^ duct.
    In a prosecution under Vernon’s Ann. Pen. Code 1916, art. 634, subd. “e,” making one who deals in and sells liquor a vagrant, in view of other paragraphs of article 634, directed at persons pursuing businesses or courses of conduct which fixes their character as vagrants, the accused must he guilty of the illegal sale of liquor in enough instances or for such a length of time to justify the conclusion that such is his ordinary course of conduct or manner of procuring a livelihood.
    On Motion for Rehearing.
    6. Statutes <&wkey;225—That a statute overlaps and includes same or similar acts forbidden by another held not ground for holding them inoperative.
    That a statute overlaps and includes within its comprehension the same or similar acts forbidden by .another statute is not sufficient ground for holding them in such conflict as to he inoperative.
    Morrow, P. J., dissenting in part.
    Ex parte C. J. Oates on application for writ of habeas corpus. A preliminary writ was granted.
    Application denied, and relat- or remanded to custody.
    See, also, 234 S. W. 675; 238 S. W, 932.
    Burkett, Anderson & Orr, of Eastland, for relator.
    J. L. Goggans, City Atty., and F. L. Ha-worth, Asst. City Atty., both of Breckenridge, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

A preliminary writ of habeas corpus was granted in th'is ease 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 pertaining 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 ha-beas corpus unless it appear that the accused has exhausted his remedies by appeal, cer-tiorari, 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 article 634, Vernon’s P. O. He claims that said article was repealed by the provisions of what is commonly known as the Dean Law (Acts 36th Leg. [1919] 1st and 2d Called Sess. c. 7S). 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. 105, subd. 12. In Ex parte Smallwood, 87 Tex. Cr. R. 269, 221 S. W. 293, 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 article 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 viola-tive 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 Daw 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.

On Motion for Rehearing.

In his motion for rehearing appellant takes issue with our conclusion as expressed in our original opinion that one who is sought to be .held as a vagrant under subdivision “e” of article 634, Vernon’s P. .0., must have been shown to have pursued a course of conduct of some forbidden, character in order to bring him properly within the comprehension of the term “vagrant.” As illustrative of the fallacy of our reasoning as to the purposes and intent of the various subdivisions of said article, appellant calls attention to subdivision “l" thereof, which says that every person who abandons his wife or child, etc., shall be deemed a vagrant. Appellant insists that it appears from the language of said subdivision “l” that one act of abandonment would make of the actor a vagrant. This might be readily conceded, but what constitutes one act of abandonment? One act of going to town, or away from wife and children, or home, would cértainly not amount to an abandonment, and this no matter what might be the announced purpose of the husband or father in so going, provided he did not stay away. Appellant’s illustrations strengthen our views of the purpose of the various subdivisions of article 634, supra. One does not abandon his wife or children until his course of conduct makes it reasonably evident that he not only has gone away from them, but also intends to stay away and to not support them. A simple withholding of one contribution to their support would not amount to an abandonment, but same must be continued' so as to make it a course of conduct.

A comparison of various statutes upon our books which in some way appear to overlap with other laws and which include within their comprehension the same or similar acts would not appear sufficient ground for holding such laws to be in such vital conflict as to render them inoperative. Subdivision “I,” mentioned by. appellant, makes abandonment of wife and children to constitute one a vagrant under said article 634; and an examination of article 640a a little further on in the statute shows that one who abandons his wife and children is made punishable in another way. So of many acts which might be mentioned. We have again considered the matter raised by appellant’s motion, but are strengthened in our conclusion that the provisions of subdivision “e” must be held to relate to more than one act, and must intend to refer to á course of conduct, and appellant’s motion for rehearing is therefore overruled.

MORROW, P. J.

(dissenting in part). Whether subdivision “e” of article 634 refers to a specific act of the unlawful sale of intoxicating liquor or relates to a course of conduct establishing the status' of one engaged in the business of making unlawful sales of intoxicating liquor is a matter upon which the writer entertains some doubt.

Conceding that it refers to a status, and not to an individual transaction, no fault is found in the disposition of the matter in the attached opinion. A discussion of the matter ' by the writer is not deemed necessary further than to say, in view of his-state of mind touching the interpretation of the statute, that it is his desire to refrain from giving full sanction thereto. 
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