Oliver v. State

280 S.W. 584, 103 Tex. Crim. 150, 1926 Tex. Crim. App. LEXIS 129

Opinion

MORROW, Presiding Judge.

The offense is vagrancy; punishment fixed at a fine of one hundred dollars.

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.

Doctor Stark, introduced by the appellant, testified that he had been a practicing ^physician for twenty-five 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.

Reversed and remanded.