
    ENDER v. STATE.
    (No. 11372.)
    Court of Criminal Appeals of Texas.
    Feb. 22, 1928.
    1. Husband and wife <9=304 — Husband cannot be convicted for wife desertion unless she is in destitute and necessitous circumstances (Pen. Code 1925, art. 602).
    Under Pen. Code 1925, art. 602, husband cannot be convicted for wife desertion unless wife is in destitute and necessitous circumstances.
    2.'Husband and wife <§=314 — Charge in prosecution for wife desertion that husband’s failure to support wife was not justified because necessities were otherwise provided held erroneous (Pen. Code 1925, art. 602).-
    In prosecution for wife desertion, charge that husband’s failure to support wife who might be in destitute and necessitous circum ■ stances would not be justified by fact that necessities were provided by others or income from separate property ñeld erroneous, under Pen. Code 1925, art. 602.
    3. Husband and wife <§=313 — Undisputed facts held not to support conviction for wife desertion.
    In prosecution for wife desertion, undisputed facts to effect that wife had sufficient separate property fteM not to support conviction.
    Appeal from County Court at Baw No. 1, Bexar County; McCollum Burnett, Judge.
    F. C. Ender was convicted of wife desertion, find he appeals.
    Reversed and remanded.
    Geo. L. Conger and E. S. Fellbaum, both of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for wife desertion, punishment being by fine of $500 and 90 days in jail.

The evidence is conflicting upon the issue as to whether appellant or his wife was the cause of the separation. It is not necessary to set out the testimony on this point, as the disposition of the appeal turns upon another phase of the case.

The statement of facts discloses that appellant and his wife were each owners of considerable property at the time of their marriage, which occurred some 18 months before the date of the alleged abandonment. The uncontradicted proof shows that appellant’s wife at the time of the separation owned in her own separate right several pieces of real estate in the city of San Antonio, most of it unimproved, a half interest in $4,000 which was out on interest, $1,250 in the San Antonio Building & Loan Association, against which was a loan of $535.58, and three diamond rings of the value of $250. Upon the trial she estimated the value of all her property at $8,000. The charge against appellant was that he, without justification, abandoned his wife and left her in “destitute and necessitous circumstances.” However reprehensible appellant may have been in leaving his wife, the statute does not’permit a conviction unless she was in destitute and necessitous circumstances. Article 602, P. C. 1925; Mercardo v. State, 86 Tex. Cr. R. 559, 218 S. W. 491, 8 L. R. A. 1312; Davis v. State, 86 Tex. Cr. R. 514, 218 S. W. 493; Barrow v. State, 88 Tex. Cr. R. 82, 225 S. W. 53; Perry v. State, 87 Tex. Cr. R. 226, 220 S. W. 549; Frank v. State, 101 Tex. Cr. R. 121, 274 S. W. 573; Patton v. State, 103 Tex. Cr. R. 135, 280 S. W. 584. Notwithstanding the many decisions on the question as shown by the above authorities, the court over appellant’s objection gave the following special charge at 'the. state’s request:

“In this- case you are charged that, under the law, the duty of providing support and maintenance of a wife rests upon the husband, and that in the event of an unlawful abandonment, desertion and failure if any, to provide for the support of the wife who may he in destitute and necessitous circumstances may not he justified hy the fact that her necessities are provided by other persons or hy the proceeds or income arising from her separate property.” (Italics ours.)

The charge is not only in the face of the authorities, but is contradictory in its own terms, in that if her necessities are provided from the proceeds of her separate property she would not be in necessitous circumstances. The error in the charge demands a reversal. In addition, the undisputed facts upon the point discussed do not support the verdict.

If there should be another trial the. prenuptial contract between appellant and his wife should be admitted in evidence.

The judgment is reversed, and the cause remanded. 
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