¶1As reluctant as we are to grant new trials on the ground that this is put, we think that this case should undergo another investigation. The charge is vagrancy. The evidence for the state, after proving the main charge of idleness, no property, etc., is, that the defendant “ looked as though he was able to work.” This is stated by nearly every one of the witnesses for the prosecution. Each count in the indictment charges that the defendant is able to work, and is founded on that branch of the definition of vagrancy, as set out in the Code, Avhich makes-ability to work a necessary fact to be averred and proved. It is true, the Code goes further and makes certain things constitute vagrancy, without including the terms, “ able to work.” But the indictment does not cover those cases. "We do not say that the evidence for the prosecution would not sustain theverdict, had there been no counter evidence. But, as stated, that evidence is not positive that the defendant was able to work, but only that “ he looked like he was able to work.” To meet this, the defendant introduced positive testimony of his inability. Dr. Bacon says his arm was swollen six weeks before the bill was found; that he had a disease in its secondary form, which had made him. unable to use his arm, and he could not work as well as a feeble woman, etc. Other witnesses testify that he did work until his arm swelled so he could not — which was about four months prior to the trial. In fine, we say, in reviewing the *576whole testimony, that where, in a case, ability to work becomes a necessary fact to constitute the offense, and the defendant offers strong and positive evidence, such as this, the prosecution should go farther than to prove that “he looks like he was able to work.” If he be, in fact, able, it can be easily proved. If the witnesses for the state had shown that they knew him well, had been much with him, had good opportunities to know his condition, etc., it would have given weight to their opinions. Had they shown equal facilities or means, on their part, for knowing his ability to work, as those for the defense had to know his inability, the question would be different.
¶2Let a new trial be granted.