ture day thereof. The case did not go to the jury until January 20th. There is no showing that witness was still incapacitated to testify at that time. Sweeney v. State, 59 Texas Crim. Rep., 373.

Bills of exceptions Nos. 2, 3 and 4 consist entirely of questions and answers, and rulings of the court. We wish again to express our disapproval of bills in this form. They do not comply with the requirements. See Vernon's C. C. P., page 537, note 21. It may sometime be necessary for the trial judge to direct the incorporation of questions and answers for the aid of this court, but in the first instance they should not be presented in this form. In so far as we have been able to discover from the bills in their present condition no reversible error is shown. One is apparently complaining that upon re-direct examination of a witness the district attorney framed his questions assuming that deceased's brains had been beaten out. The bill nowhere states that this had not been shown. Another recites that while a witness was testifying she was asked: "Did you ever hear her talk to him about the criminal records of his brother?" The bill is silent as to whom reference is made. The fourth bill presents objections to an officer testifying what statements were made to him by appellant. We think same were admissible. Appellant was not under arrest at the time. Bill No. 5 is incomplete and shows no answer of the witness. If the question itself is excepted to, sufficient information is not given in the bill to enable this court to appraise the claimed harmful effect.

The charge on insanity was excepted to on the ground that it was merely an abstract statement of the law, and did not apply nor attempt to apply the law to the facts. An examination of the charge given reveals it to be one so frequently approved by this court, not only in its general terms, but in the application as well, that we deem it unnecessary to set it out, or cite authorities in support of it. It, therefore, follows that the court committed no error in refusing the special charge on the same subject.

Two special charges were requested to the effect that if appellant expected to find some other man in his wife's room, and anticipated an attack from him, appellant had a right to arm himself with a pistol before going there. The court in no way restricted appellant's right of self-defense, and therefore, no necessity existed for such instructions to be given. (See cases cited in Branch's Ann. P. C., section 1950, page 1091.)

We gather from Bill of Exceptions No. 9 that during the cross-examination of the witness Flippen, who was a character witness for accused, the district attorney remarked that the State "wanted to show that appellant was not virtuous." Whether this trait of character had, or had not, been put in issue by appellant, is not shown by the bill. Nothing is stated from which we may know that in some way the suggestion was not pertinent. No evidence upon that issue is shown by the bill to have been introduced, but the expression by the prosecution.

of a desire to offer it, is the matter to which exception is taken. We cannot determine whether an error was committed.

Finding no errors in the record which would require a reversal, the judgment of the trial court is affirmed.

Affirmed.

BLANCHE PAINTER V. THE STATE.

No. 6480. Decided November 30, 1921.

Vagrancy-Insufficiency of the Evidence.

Where, upon trial of vagrancy under Sub-division C, Article 634, Vernon's C. C., the evidence was insufficient to support the conviction, the same was reversible error.

Appeal from the County Court of Williamson. Tried below before the Honorable F. D. Love.

Appeal from a conviction of vagrancy, under Article 634, Vernon's C. P.; penalty, a fine of $50.

The opinion states the case.

W. C. Wofford, for the appellant.-Cited: Bennett v. State, 205 S. W. Rep., 987.

R. G. Storey, Assistant Attorney General, and Dan Moody, County Attorney, for the State.

LATTIMORE, JUDGE.-Appellant was convicted in the County Court of Williamson County of the offense of vagrancy, and her punishment fixed at a fine of $50.

The particular form of vagrancy charged against appellant was that defined in subdivision C of Article 634, Vernon's P. C., it being charged that she was a person able to work, having no property to support her, and who had no visible or known means of a fair, honest and reputable livelihood. But one question is presented on appeal, and that is the sufficiency of the testimony to support the judgment of guilt. An examination of the statement of facts discloses that appellant had lived at the same place in the town of Taylor, in Williamson County, for the past six years; that she owned her own home, same being a house of some four rooms. The State introduced five witnesses whose testimony was substantially the same. Said witnesses stated they had known appellant during the past several years, and that she seemed able to work. Each one of them also stated that they knew of no work that she did, and of no other property that she possessed, and of

no income that she derived from any investments, and that they had not seen her doing any work, and had not seen her going to or from any work. Each of these witnesses testified on cross-examination that they did not know whether appellant was rich or poor, or whether she owned property outside of the town of Taylor; that she did not visit them, nor had they ever visited her; that she might do work of which they knew not and that she might receive an income of which they knew nothing. It was also in evidence that she lived in what was called by the witnesses the restricted district, but no explanation appears in the record of what is meant by this. The tax assessor of Williamson County also testified that appellant rendered her home for taxes in 1920 and 1921 at a valuation of $250. One of the witnesses testified that appellant and some other girls boarded with her, taking two meals each day with her, and that appellant paid for her meals.

Subdivision C of Article 634, Vernon's P. C., defining vagrancy, is as follows:

"All persons able to work, have no property to support them, and who have no visible or known means of a fair, honest and reputable livlihood. The term 'visible or known means of a fair, honest and reputable livelihood,' as used in this article, shall be construed to mean reasonably continuous employment at some lawful occupation for reasonable compensation, or a fixed and regular income from property or other investments, which income is sufficient for the support and maintenance of such person."

In order to convict appellant for the offense thus defined, the State would have to prove beyond a reasonable doubt, first, that appellant was able to work; second, that she had no property to support her; third, that she had no reasonably continuous employment at some lawful occupation for reasonable compensation, and that she had no fixed and regular income from property or other investments sufficient for her support and maintenance. The State seems to have established proposition No. 1. Upon the second proposition, the proof shows that appellant owns a home and has a fixed habitation, d seems to have had for six years. Upon the latter part of the third proposition, the record appears to be absolutely silent. Did appellant own property outside of Taylor? The witnesses say they do not know. Had she a fixed income from investments? The witnesses say they do not know. Does she perform any legitimate work in her house from which she derives an income? The witnesses say they do not know. If the inference is to be drawn or sought, that appellant is engaged in such course of living as to make of her a person coming within any of the other definitions of a vagrant under the terms of Article 634, supra, it would seem that officers and other witnesses in the town of Taylor might be obtained to show such facts. There are no presumptions against one charged with crime. Until the contrary was made to appear, this appellant would be presumed to have an income from invest

ments, or to have property somewhere to take care of her, or to receive money from some legitimate source. Regardless of what suspicions may be cast, in order to convict of crime in this State there must appear more in the record than the negative testimony of five witnesses, only one of whom is shown to even have a speaking acquaintance with appellant, and none of whom testify to having seen anything, or to know anything, or to having heard her say or indicate that her means of livelihood was not legitimate. Certainly there are banks and a postoffice in Taylor through which money or income from outside sources would ordinarily come. There must be officers with ability to ferret out and detect if appellant be engaged in an occupation whose character would subject her to prosecution as a vagrant. We have carefully examined the testimony of each of the witnesses and are unable to bring ourselves to the belief that same fairly supports the inference of guilt necessary to support the verdict. So believing, the judgment of the trial court is reversed and the cause remanded. Reversed and remanded.

JAMES ANTHONY V. THE STATE.

No. 6488. Decided November 30, 1921.

1.-Adultery-Jurat-Complaint-Assistant County Attorney.

Where the jurat was sworn to and subscribed before F. M. Scott, County Attorney, by James T. Casey, Assistant, the jurat was fatally defective. Following Arbetter v. State, 79 Texas Crim. Rep., 487, and other cases.

2.-Same-Misdemeanor-Charge of Court-Requested Charge-Practice in Trial Court.

Where the record showed that appellant requested of the trial court a written charge in a misdemeanor case, and that when this was refused he asked time and privilege to prepare and present to the court a proper charge in writing, the court should have granted this request, and it was of no consequence to the trial court whether defendant's counsel prepared such charge in his office or not.

Appeal from the County Court of Harrison. Tried below before the Honorable W. H. Strength.

Appeal from a conviction of adultery; penalty, a fine of $100.
The opinion states the case.

Harrison & Harrison, for appellant.-On question of insufficient jurat: Goodman v. State, 212 S. W., 171, and cases cited in opinion. On question of preparing written charge: Abrigo v. State, 178 S. W. Rep., 518.

R. G. Storey, Assistant Attorney General, for the State.

LATTIMORE, JUDGE.-This is an appeal from a conviction for adultery in the County Court of Harrison County, the punishment being fixed at a fine of $100.

Appellant made a motion to quash directed at an alleged defective jurat affixed to the complaint. Said jurat appears as follows:

"Sworn to and subscribed before me by A. J. Munden, a credible person, on this the 22d day of December, 1920.

"F. M. Scott, County Attorney, Harrison County, Texas.

By Jas. T. Casey, Assistant."

The Assistant Attorney General has confessed this to be erroneous. This direct question was before this court in Goodman v. State, 85 Texas Crim. Rep., 279, 212 S. W. Rep., 171, and the jurat held insufficient. See Arbetter v. State, 79 Texas Crim. Rep., 487.

Appellant complains of the refusal of the court to give a written charge. This is a misdemeanor case. Article 740, Vernon's C. C. P., requires the giving of a written charge in a criminal case, but provides that in a misdemeanor case such written charge may be waived by the consent of the accused. It is shown by various bills of exception that appellant requested of the trial court a written charge in this case, and that when this was refused, he asked time and privilege to prepare and present to the court a proper charge in writing. The trial court appends a qualification to the bill of exceptions taken to his refusal to grant the right and time to so prepare said charge, said qualification stating that he granted the request for time, but that appellant's attorney refused to prepare such charge unless permitted to go to his office for that purpose, and that the court directed him to proceed with the case unless he was willing to prepare such charge in the courtroom. In our opinion the request for time to prepare such charge should have been granted, and a reasonable time having been fixed, it was of no consequence to the trial court where appellant's attorney prepared such charge, and the court was in error in refusing to allow him to go to his office for such purpose. A fair inference would arise that such attorney might be better prepared for such work in his own office. The other matters complained of may not arise upon another trial. The judgment is reversed and the prosecution ordered dismissed. Reversed and dismissed.

CARROLL AND JOEL WHITELY V. THE STATE.

No. 6518. Decided November 30, 1921.

1.-Burglary-Continuance-Bill of Exceptions.

In the absence of a bill of exceptions, the overruling of a motion for continuance cannot be considered on appeal.