
    KACHEL v. STATE.
    (No. 8211.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1923.)
    1. Husband and wife <&wkey;312 — -Information alleging present destitution of wife held insufficient.
    Where complaint alleged that on a named date defendant deserted his wife, “who is in destitute and necessitous circumstances,” and the information alleged present destitution, a motion to quash because it alleged only destitute circumstances at time of prosecution shopld have been sustained, her status at the time of the alleged desertion controlling.
    2. Criminal law <&wkey;4l9, 420(12) — Letter from unidentified person held hearsay.
    In prosecution for wife desertion, a letter from an unidentified party to defendant which had been found in defendant’s pocket, but was not adopted nor acted on by him, was hearsay and should have been excluded.
    Appeal from Polk County Court; E. T. Murphy, Judge.
    Roy Kachel was convicted of wife desertion, and he appeals.
    Reversed and information dismissed.
    Z. L. Foreman and F. Campbell, both of Livingston, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover O. Morris, Asst. State’s Atty., of Devine, for the State.
   HAWKINS, J.

Conviction is for wife desertion. Punishment, fine of $250 and 90 days in jail.

The prosecution was by complaint aha information. The complaint was made on July 16, 1923, and it and the information were filed on that date. The complaint alleges that on February 2, 1923, appellant deserted his wife, “who is in destitute and necessitous circumstances.” The information follows the complaint with the same allegation of present destitution. Motion to quash was filed based upon the ground that the pleading of the state alleged only the destitute circumstances of the wife at the time of instituting the prosecution, whereas her status in that respect at the time of the alleged desertion was the controlling issue. We are of opinion appellant’s contention is correct, and that the court should have sustained the motion to quash. In Cox v. State, 84 Tex. Cr. R. 49, 205 S. W. 131, the question of vagrancy was discussed as presenting the issue of the present rather than the past status of accused. The same issue is here involved, except that here it is the past status of the wife relative to being in destitute circumstances at the time of the alleged desertion, and not her present status in that regard. A man might desert his wife leaving her well supplied with all the money and comforts necessary, and yet some time within the period of limitation for some reason not attributable to him she might become destitute, but in such case we do not believe a prosecution for desertion could be maintained. O’Brien v. State, 90 Tex. Cr. R. 276, 234 S. W. 668, and Bobo v. State, 90 Tex. Cr. R. 397, 235 S. W. 878, are authority -for the proposition that under the statute in question (article 640a, Vernon’s Ann. Pen. Code 1916) a man might be guilty of willfully refusing to provide for the support of his wife although he had not deserted her. But that issue is not in the present case. If appellant is guilty, it was because of a deserten at a time when his wife was in necessitous circumstances. In Sikes v. State, 67 Ala. 77, an indictment was held defective because the averments related to the' time when it was filed, and in not charging the attendant facts and circumstances which made the offense to have existed at the time the alleged offense was committed.

In the event of further prosecution we call attention to a question raised because of the admission of the contents of a letter from some unidentified party to appellant which was found in his pocket. This should not have been admitted. It was hearsay. It is not shown he adopted or acted on the letter. For elaboration of our reasons why it should have been excluded, see Terrell v. State, 88 Tex. Cr. R. 599, 228 S. W. 240; Hollingsworth v. State, 80 Tex. Cr. R. 299, 189 S. W. 488; James v. State, 40 Tex. Cr. R. 190, 49 S. W. 401, and other authorities cited in the Terrell opinion.

The judgment must be reversed, and the prosecution under the present complaint and information dismissed. 
      <gc»For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     