
    QUALLS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Indictment and Information (§ 79) — Sufficiency — Mistake -in Spelling.
    An indictment for abandonment after seduction and marriage, in which the word “woman” is spelled “worn,” is not fatally defective where it is alleged in other places that she was a female.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 209-214; Dec. Dig. § 79.]
    2. Indictment and Infoemation (§ 109) — Statutory Offenses — Abandonment of Wife.
    Where a statute prescribes different ways by which the offense of abandonment after seduction and marriage can be committed, an indictment should not be quashed on the ground that it charges the offense to have been committed in only one of those ways.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 286-288; Dec. Dig. § 109.]
    3. Indictment and Infoemation (§ 175) — Issues, Proof, and "Variance — Venue.
    Where an indictment alleged only an abandonment of the wife by the husband and not the commission of the offense in other ways denounced by the statute, the state must prove that the abandonment occurred in the county of the prosecution, even though other "acts which would constitute the offense, had they been alleged, were committed within the county, and the statute gave the jurisdiction of an offense committed partly within and partly without the state to the court of any county where the defendant might be found.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 544-547; Dec. Dig. § 175.] _
    4. Criminal Law (§ 772) — Instructions— Venue.
    In a prosecution for abandonment after seduction and marriage, where the defendant contended that he did not abandon his wife but that she abandoned him in another state, and she testified that she was informed while in another state that her husband had abandoned her and that she then stated she was coming back to send Mm to the penitentiary, the court should give a charge, on request by the defendant, as to the place of the abandonment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    5. Criminal Law (§ 361) — Evidence — Explanation.
    In a prosecution for abandonment after seduction and marriage, where defendant’s uncle had testified that the wife told him she wa.s going back to send the defendant to the penitentiary, it was proper for the state to show that the statement was occasioned by the uncle’s telling her that her husband was not coming back.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 802, 803; Dec. Dig. § 361.]
    6. Criminal Law (§ 417) — Evidence—Declarations.
    It was not proper to show that the uncle had told the wife that she was too good for the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]
    7. Witnesses (§ 318) — Corroboration.
    Where the defendant claimed that he did not intend not to live with his wife until after his father informed him that she had stated she was going to send him to the penitentiary, it was proper for the father to testify that he so informed his son.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. § 318.]
    8. Witnesses (§ 61) — Competency — Wife of Accused — Prosecution for AbandqnMENT.
    A wife can testify against her husband in a prosecution against him for abandonment after seduction and marriage, since the statute expressly authorizes such testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 163, 174-176; Dec. Dig. § 61.]
    9. Criminal Law (§ 402)— Secondary Evidence — Proof as to Possession of Primary Evidence.
    Where a wife testifies, in a prosecution for abandonment, that a letter was stolen from her, it should be shown that the letter is either in her husband’s possession or beyond the jurisdiction of the court, and then she may testify as to its contents.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 887, 888; Dec. Dig. § 402.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Tom Qualls was convicted of abandonment after seduction and marriage, and he appeals.
    Reversed and remanded.
    S. P. Sadler, of Gatesville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   HARPER, J.

Appellant was prosecuted and convicted of ‘abandonment after seduction and marriage. Appellant filed a motion to quash the indictment on three grounds; the first being that the law is unconstitutional. We discussed this question so thoroughly in the case of Thacker v. State, 62 Tex. Cr. R. 294, 136 S. W. 1095, we do not deem it necessary to discuss the question again and hold that the court did not err in overruling the motion to quash on that ground.

The second ground is that in the indictment, where it was intended to use the word “woman,” only the letters “worn” appear. Appellant cites us to the case of Jones v. State, 25 Tex. App. 621, 8 S. W. 801, 8 Am. St. Rep. 449, in which the indictment was quashed because the word “appropriate” was misspelled, but did not refer us to the later case of Francis v. State, 44 Tex. Cr. R. 246, 70 S. W. 751, where the same word was again misspelled, and the court held this did not vitiate the indictment. He also cites us to the case of Wells v. State, 50 Tex. Cr. R, 499, 98 S. W. 851, in which the word “fraudulently” was misspelled by placing the letter “a” before “r” in “fraud,” but he failed to cite us to the case of State v. Earp, 41 Tex. 487, where the letter “u” was entirely omitted in spelling “fraud,” and yet the indictment held good. We could take up the case cited by appellant and cite cases almost similar where similar words misspelled have been held not to vitiate the indictment, if by reading the entire instrument its meaning was made clear, plain, and unmistakable, and the misspelled word in no sense rendered the meaning obscure nor the meaning changed. In the recent case of Bailey v. State, 63 Tex. Cr. R. 584, 141 S. W. 224, this question was discussed at length and authorities cited announcing the true and correct rule under our Code of Criminal Procedure. In the indictment in this ease, by a half dozen different allegations, it is alleged that she was a female, and the misspelling of the word “woman” in one place would not render the indictment fatally defective.

The third and last ground in the motion contends that, in addition to alleging that defendant unlawfully abandoned his wife, it should also have been charged that “he refused to live with her; that he was so cruel to her as to compel her to leave him; that he was guilty of such outrages and cruelties towards her as to make their living together insupportable, thereby causing her or forcing her to leave him and live apart from each other.” The statute by using these different methods was but stating the different ways the offense could be committed. Of course the pleader by using the conjunction “and” could have charged the offense to have been committed in all the ways enounced by the statute, or he could have selected either of the methods named, and in this case did select the first method, alleging that appellant had abandoned his wife, and the court did not err in overruling the motion to quash the indictment.

However, in selecting that method and alleging that the offense was committed by appellant abandoning her, he would not be permitted to secure a conviction if the offense was committed in either of the other ways enounced by the statute but not included in the indictment. In this case if the pleader in drawing the indictment had alleged that he committed the offense by “refusing to live with the woman he had seduced and married,” there could be no question that the district court of Coryell county had jurisdiction of the offense; but, as the indictment only alleged the offense to have been committed by app'ellant abandoning her, then the place where he did in fact abandon her would have jurisdiction of the offense. The pleader having elected to charge only this mode and method of committing the offense, then it must be proven as alleged, and the abandonment must be shown to have taken place in Coryell county. The state in its brief virtually admits that the evidence raises the issue as to whether appellant committed the act of abandonment in Oklahoma or in Coryell county and seeks to sustain the indictment under those provisions of the Code which give jurisdiction of an offense when .committed partly in this state and partly without the state in any county where the offender may be found, and this contention would be sound had the state in its indictment alleged that the offense was committed by appellant refusing to live with his wife, or that he. was guilty of such cruelties and outrages towards her as to make their living together insupportable, etc. But it did not elect to charge the offense to have been committed in either of these ways and rested its case solely on the allegation that he had abandoned her.

Appellant’s contention is that he never at any time abandoned his wife but that she abandoned him; that he did not make up his mind to not live with her until his father told him she had said she was coming to Coryell county for the purpose of sending him to the penitentiary; and that he then decided to not live with her longer. The state’s case is that Mrs. Qualls was informed in Oklahoma that her husband had abandoned her, and that was the reason and occasion for her making the remark that she was coming back to Coryell county and send him to the penitentiary, and supports this theory by other testimony in addition to that' of the wife. Under such circumstances, the place of abandonment was a serious issue in the case and at the request of appellant should have been submitted to the jury under the allegations contained in this indictment. The court’s refusal to give the special charge is emphasized in the charge as given by instructing the jury to convict appellant if he did refuse to live with her; there being no such allegation in the indictment in this case. It is always error to authorize a conviction for an offense in a way and manner not charged in the indictment. It may be and is true in this instance that, if the indictment had alleged that the offense was committed in that method and manner, a conviction would be sustained; but, the indictment not containing such allegations, this part of the charge of the court should not have been given, and the issue as to whether or not the abandonment took place in Coryell county should have been submitted to the jury.

Appellant has many bills of exception in the transcript, but we do not deem it necessary to discuss all of them in view of the reversal of the case but only such as present error.

Appellant took the depositions of his uncle, B. L. Qualls, who resides in Oklahoma, and this witness testified that appellant had always treated his wife well, and that when appellant’s wife left Oklahoma she said “she was coming to Texas and send appellant to the penitentiary.” Appellant proving that fact, then it was permissible for the state to prove the occasion for the reason why the remark was made, and that was that he (the witness, B. L. Qualls)-had told Mrs. Tom Qualls (appellant’s wife) that appellant was not coming back to Oklahoma; that he would give her $250 if she would leave appellant and let him get a divorce, and if she •did not do so appellant would leave her any way at the end of two years; but it was not permissible to interrogate this witness .as to whether he (witness) had told her (Mrs. Tom Qualls) that she was too good for Tom (appellant). This may have been the opinion of the witness B. L. Qualls, but it was not admissible as against appellant, and, when the witness denied making the statement “that she was too good for Tom,” it was not permissible to prove by the witness Johnson that he heard B. L. Qualls did say so.

When appellant had testified that he was informed by his father that his wife had quit him and had said she was coming back to Coryell county to send him to the penitentiary, it was error to refuse to permit the father to testify that he had so told his son. Each was contending that the other had done the quitting, and, while the state’s testimony would authorize the jury to find that appellant was wholly in the wrong, yet such legitimate testimony as he desired to offer in support of his theory of the case should have been admitted.

The abandonment statute specifically authorizes the wife who has been abandoned to testify, and the court did not err in permitting her to do so.

As to the contents of the letter which Mrs. Qualls testifies was stolen from her, if it is true that this letter is either in appellant’s possession or beyond the jurisdiction of the court, this fact should be shown, and, if it is shown on another trial, then there will be no error in permitting her to testify as to its contents.

As the case will be reversed and remanded, we would suggest that the district attorney secure another indictment and by use of the conjunction “and” charge the offense to háve been committed in all the ways denounced by the statute, and then there could be no question about the jurisdiction of the district court of Coryell county. Of course, in submitting the offense to the jury, the court should submit the case only as to the modes and methods of committing the offense the evidence will sustain.

While there are a number of other grounds assigned, we think the ruling on the above questions will sufficiently indicate to the court what testimony should be excluded that was admitted on this trial.

The judgment is reversed, and the cause is remanded.  