Opinion
8520
April 14, 1913.
Before DEVORE, J., Greenville, September term. 1912. Reversed.
Indictment by the city of Greenville against Mamie Ward.
From Circuit order reversing judgment of recorder, the city appeals.
Messrs. McCullough, Martin Blythe, for appellant.
Messrs. Cothran, Dean Cothran and O.K. Mauldin, contra.
April 14, 1913. The opinion of the Court was delivered by
The respondent was convicted in the recorder's court of the city of Greenville on the charge of vagrancy, under an ordinance, of which the following is a copy: "All persons who may be able to labor and have no apparent lawful means of subsistence and neglect to apply themselves to some honest occupation for the support of themselves and their families, if they have families, who shall be found loitering or without employment in the city; all persons who acquire a livelihood by gambling or horse racing; all keepers of gambling tables, faro banks or other banks or devices for gambling known under any other denomination; all persons who lead idle and disorderly lives; all persons who knowingly harbor thieves and felons; all persons not following some honest trade or occupation or not having some known or visible means of gaining a fair, honest and reputable livelihood; and all persons engaged in any unlawful calling whatsoever, shall be deemed vagrants, and, upon conviction in the city court, shall be punished by a fine of not more than fifty dollars, or by imprisonment for not more than thirty days for every such offense. In order to escape conviction hereunder it shall not be sufficient for the accused to have upon his person or in his possession some money or other things of value; nor shall such money or other thing of value be deemed or taken as a visible means of gaining a livelihood within the meaning of this section."
The Circuit Court reversed the judgment of the recorder's court on the ground that the recorder erred in charging his jury the last sentence of the ordinance, which is italicized, because that portion of the ordinance deprived the jury of the right to pass upon the fact whether defendant was, at the time of her arrest, making a fair, honest and reputable living. In other words, as we understand it, the ruling was that the charge was upon the facts.
We think the ruling was erroneous. There is nothing in that part of the ordinance which renders it invalid. It merely establishes a rule of evidence, that the mere fact that the accused has money or other things of value in his possession shall not be sufficient to prevent a conviction; and that the possession thereof shall not be deemed or taken as a visible means of gaining a livelihood. This does not prevent the jury from considering such facts, and giving them such weight as, in their opinion, they should have. The weight which should be given them will depend upon a variety of circumstances, — among others, the manner in which the money or property was obtained. If it was obtained honestly, it might be sufficient to prevent conviction, but if it was obtained in the unlawful pursuits condemned by the ordinance, to allow its possession to be sufficient evidence to prevent conviction would practically destroy the ordinance.
Reversed.