
    (86 Tex. Cr. R. 552)
    CURD v. STATE.
    (No. 5638.)
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1920.)
    1. Witnesses <@=>64(1) — Divorced wife competent WITNESS AGAINST DEFENDANT.
    The divorced wife of one accused of an offense is competent against him in any character of case, and she may testify to any matters which are not confidential communications; and the mere fact that she was his wife when the matters. sought to be elicited occurred does not prima facie make such matters privileged.
    2. Witnesses <§=>61(2) — Husband and wife _MAY TESTIFY AGAINST EACH OTHER IN PROS'ECUTION .FOR DESERTION OR FAILURE TO SUPPORT CHILDREN.
    The law making the wife incompetent to testify against her husband as to privileged communications is purely statutory, being embodied in Vernon’s Ann. Code Or. Proc. 1916, arts. 794, 795, while a subsequent enactment (Vernon’s Ann. Pen. Code 1916, art. 640c), makes husband or wife competent to testify to all relevant facts in a prosecution, for wife desertion or for failure to support minor children.
    3. Parent and child <@=>17(6) — Evidence ADMISSIBLE IN PROSECUTION FOR FAILURE TO SUPPORT MINOR CHILDREN.
    In a prosecution for failure to support minor children, testimony of defendant’s father that he had employed an attorney to represent defendant’s wife in defendant’s divorce suit was admissible for what it was worth, as showing the destitute condition Of the wife and children of defendant at the time he forced them to take refuge with his father.
    4. Parent and child <@=> 17(6) — Evidence of IMPROPER SUIT FOR DIVORCE ADMISSIBLE IN PROSECUTION FOR FAILURE TO SUPPORT CHILDREN.
    In a prosecution for failure to .support minor children, the fact was admissible that defendant filed suit for divorce in a county before he had lived there six months, so that the i suit was brought at a time and place when and where he had no legal right to file it and obtain divorce; the prosecution involving defendant’s entire attitude towards his wife and children.
    5. PARENT AND CHILD <@=>17(6) — EVIDENCE OF WIFE’S MISCARRIAGE FROM CRUELTY OF HUSBAND ADMISSIBLE IN PROSECUTION FOB FAILURE TO SUPPORT CHILDREN.
    In á prosecution for failure to support minor children, testimony of defendant’s father that his wife had a miscarriage at his house, caused 'by defendant’s cruel treatment, was admissible, as showing defendant’s attitude toward Ms wife and family.
    6. Criminal law @=»1169(12) — Admission of EVIDENCE PREVIOUSLY UN OBJECTED TO HARMLESS.
    In a prosecution for failure to support minor children, where defendant’s wife testified without objection that she had a miscarriage at her father-in-law’s house, caused by defendant’s cruel treatment, testimony of the father to such effect was harmless.
    7. Criminal law <®=3087(2) — No abuse of DISCRETION IN DENYING DEFENDANT LEAVE TO TAKE STAND DURING ARGUMENT.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 718, evidence may be heard at any time before argument is concluded, but the court trying a prosecution for failure to support minor children did not abuse its discretion in denying defendant leave to take the stand and explain a part of the testimony in regard to wMch he contended the prosecuting attorney, then making the closing argument for the state, was in error.
    8. Parent and child ®=»17(6) — Evidence SHOWING FAILURE TO SUPPORT MINOR CHILDREN.
    Evidence Mid to sustain conviction of the offense of willful refusal to support defendant’s two children, aged one and two years.
    Appeal from County Court at Law, Harris County; Roy E. Campbell, Judge.
    F. J. Curd was convicted of willfully refusing to support bis ,two minor children, and be appeals.
    Affirmed.
    B. L. Palmer, of Houston, for appellant.
    E. T. Branch, Cr. Dist. Atty., of Houston, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court at law No. 2, of Harris county, Tex., of the offense of willfully refusing to support his two children, aged respectively, one and two years, and bis punishment fixed at a fine of- $100 and six months’ confinement in the comity jail.

The date of appellant’s trial w^s May 27, 1919. , His divorced wife was a witness against him, and to her testimony objection was urged by bill of exceptions No. 1. Therefrom it appears that when said wife was placed on the stand by the state she stated that she was the wife of defendant until May 17, 1919, whereupon appellant objected to her giving any testimony as to matters transpiring prior to said date, -the ground of said objection being stated in the bill as follows;

“Because she, having been defendant’s wife at the time of the occurrence of the tMngs concerning which she was asked to testify, came into possession of her knowledge concerning such matters as the wife of defendant; that all such knowledge was hers by reason of the marital relation,’and came to her through privileged communications concerning which she could not lawfully testify against her husband except for some offense of violence against her own person.”

The objection so stated in said bill is not tenable in any event. The divorced wife of one accused is competent against him in any character- of case, and she may testify to any matters which are not confidential communications, and the mere fact that she was his wife when the matters sought to be elicited occurred would, not prima facie make such matters privileged. Branch’s Ann. P. 0. § 151, and authorities cited; White v. State, 40 Tex. Cr. R. 371, 50 S. W. 705; Cole v. State, 48 Tex. Cr. R. 446, 88 S. W. 341; Bryan v. State, 63 Tex. Cr. R. 200, 139 S. W. 981.

We further observe that the law making the wife incompetent to testify against her husband as to-privileged communications is purely statutory (see articles 794, 795, Vernon’s O. C. P.), and that a. subsequent enactment to those mentioned above makes the husband or wife entirely competent to testify to all relevant facts in a prosecution for wife desertion, or for failure to support the minor children, by the terms of the act under which this charge was laid (see article 640c, Vernon’s Penal Code).

It is undisputed in this case that appellant and bis wife separated in December, 1918, and that later he filed a suit for divorce; that the attorney who represented appellant in the bringing of said divorce suit drew up an agreement for the parties, which was to be incorporated in any judgment rendered; that appellant became dissatisfied with said attorney and procured another, whose name did not appear in the proceedings, and obtained his divorce without incorporating said agreement in the judgment, and without further, notice of any kind to his wife that they were going to take up and try said case; that on the same day the divorce was granted appellant he married one Delma Green, to whom the evidence * cogently suggests that he had been paying attentions eve^while living with his former wife; that at the time of the separation in December, 1918, because of having no money or means of support, the wife and two little-children of appellant were taken into the home of Ms father, and by him supported ; that the father testified as a witness for the state herein, giving evidence to the effect that his daughter-in-law came to Ms home on the day of said separation because appellant drove her away from their home .when she was sick, and that shortly thereafter she had a miscarriage, caused by the cruel treatment pf appellant, and that ap-Xiellant neglected her and failed to provide for her, and that she was dependent upon Mm, the father-in-law; and, further, that appellant had filed a suit for divorce without having lived in Harris county six months, and that he, appellant’s father, employed an attorney to represent.the wife.

Appellant’s second bill of exceptions was reserved to the action of the trial court in allowing the state to show by appellant’s father that he had employed an attorney to represent the said wife in said divorce suit. In our opinion this evidence was admissible for what it was worth, as showing the destitute and necessitous condition of the wife and children of appellant. The children were mere infants, and their well-being, and practically their lives, were intimately connected with the wife of appellant, and whatever affected her necessarily affected them; and, appellant having sued her, the services of an attorney became necessary, and that one was employed for her by appellant’s father was a circumstance to be considered. In this connection we observe that the wife of appellant had testified without objection that the divorce suit had been brought and an attorney had been employed.

Likewise, we think the fact was admissible that appellant filed suit for divorce in Harris county against his wife before he had lived in said county six months, and that hence said suit was brought at a time and place when and where he had no legal right to file same and obtain said divorce. 'A charge of deserting Ms wife and children and failure to support and provide'for them necessarily involved the entire attitude of the accused toward them, and any fact or circumstance from which his attitude of indifference, dislike, neglect, or desire to be free from or rid of them, may be introduced in evidence.

As to the objection to allowing the father of appellant to testify that the wife had a miscarriage at his house, and that Same was caused by the cruel treatment of appellant, we note that the same' testimony had been given by the wife of appellant without objection, and was'before the jury. The fact was admissible for the reason just given, as showing the attitude of appellant toward Ms wife and family, and, having been given in evidence without objection, would make the statement of the father harmless.

WMle the closing argument for the state was being made the appellant asked that he be given the privilege of taking the stand and explaining a part of the testimony in regard to which he contended the prosecuting attorney was in error. The trial court refused to allow this, and the matter is presented here- as a ground for reversal. We do not think such action on the part of the trial court was any abuse of Ms discretion in this matter. It is true that evidence may be heard at any time before the argument is concluded (article 718, Vernon’s C. O. P.), but it need not be allowed out of its usual and customary place in the order of a trial of a cause, except it become necessary to the due admiMstration of justice. No such necessity here existed. The attorneys differed as to what they thought appellant had testified to, but the jury are the ones topass upon such matters, and they may have the evidence repeated if the matter is not clear to them, but we know of no rule that would require the court to put a witness bade on the stand about whose testimony only the attorneys have differed.

We tMnk the evidence amply supports the verdict. The two children of appellant were mere babies, and for their support and that of his wife appellant is shown to have contributed $115 in approximately six months prior to the time of the institution of tMs suit. His treatment of them was such as to cause his own father to show a commendable spirit of condemnation toward him, and a desire to prevent the wife and helpless babies of Ms son from becoming objects of alien charity. 'During the time covered by the evidence approximately $400 was made and spent by appellant upon Ms own matters. The proof strongly upholds the theory that during this time appellant was-paying attentions to the woman whom he married on the very day he got Ms divorce, which divorce seems to have been gotten, not only in fraud of our laws, but also of the agreement entered into by his attorney of record.

Finding no error in the record, the judgment of the trial court is affirmed. 
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