
    BOATTENHAMER v. STATE.
    (No. 4964.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.
    On Motion for Rehearing, Nov. 6, 1918.)
    1. Criminal Law <@=>726 — Improper Argument.
    In prosecution for wife desertion, where defendant’s counsel urged jury not to assess fine which defendant’s old father would have to pay, defendant cannot complain of argument of state’s attorney urging jail penalty because fine would be paid by defendant’s father.
    On Motion for Rehearing.
    2. Husband and Wipe <@=>318 — Wipe Desertion — Lack op Justification .
    In prosecution for wife desertion, part of state’s case was to prove desertion was without justification.
    3. Husband and Wipe <@=>314 — 'Wipe Desertion — Lack op Justipication — Question por Jury.
    In prosecution for wife desertion, what conditions or facts justify the conclusion that desertion was without justification is for the jury, statute not defining them.
    4. Criminal Law <@=>815(5) — Wipe Desertion — Instruction — Withdrawing Issue.
    In prosecution for wife desertion, defendant introducing evidence to meet contention that he was not justified, special charge at request of state submitting issue of ratification of marriage void for duress, heli erroneous, as withdrawing issue of justification from jury.
    5. Criminal Law <@=>824(1) — Duty to Request Proper Charge.
    In misdemeanor case, ordinarily a defective charge, where no special charge is requested, is not reversible error; but where charge is affirmatively wrong, and exception is properly taken and shown by proper bill, though no special charge is requested, Court of Criminal Appeals cannot hold there is no reversible error.
    Appeal from Olay County Court; E. W. Coleman, Judge.
    Lawrence Boattenhamer was convicted of wife desertion, and he appeals.
    Reversed, and cause remanded.
    Fitzgerald & Weldon, of Wichita Falls, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged with wife desertion under article 640a, P. C. (Vernon’s Ann. Pen. Code 1916) and his punishment fixed at a fine of $100 and confinement in jail for 90 days.

Appellant contended that the marriage was void because under duress; that, if the marriage was legal, the desertion was not without justification. The state met the plea of duress by evidence of ratification. These issues were submitted, to the jury in a written charge prepared by the court and a special charge given at the request of state’s counsel. The special charge submitted the issue of ratification, and is complained of in appellant’s brief upon the ground that it ignored the other defensive issues, and instructed a verdict against appellant in the event the jury decided in favor of the state on the issue of ratification of the marriage. The only exception to the court’s charge was embodied in a written exception directed against the special charge mentioned. The state contends that, this being a misdemean- or case, the defect in the charge is not available on appeal, in the absence of a request for special charge correcting the defect. The rule seems to be well established that .in a misdemeanor case complaint of a charge is not available on appeal in the absence of written request for a special charge curing the error. See cases listed in Vernon’s C. C. P. p. 499; also the following: Ellis v. State, 80 Tex. Cr. R. 208, 189 S. W. 1074; Wilson v. State, 80 Tex. Cr. R. 266, 189 S. W. 1071; Bennett v. State, 79 Tex. Cr. R. 380, 185 S. W. 14; Teem v. State, 79 Tex. Cr. R. 285, 183 S. W. 1144; Salter v. State, 78 Tex. Cr. R. 325, 180 S. W. 691; Robison v. State, 77 Tex. Cr. R. 556, 179 S. W. 1157; Young v. State, 78 Tex. Cr. R. 305, 181 S. W. 472. The strictness of this rule appears 'to be based upon the fact that under article 739, C. C. P., the court is not required to give a charge in a misdemeanor case except upon request in writing, and the fact that in such case the court may, with consent of the parties, give a verbal charge. See cases listed in Vernon’s C. C. P. p. 500, art. 740. The theory is that on appeal the proceedings in the trial court are presumed regular in the absence of a legal showing to the contrary, and, where a defect in the charge appears which might have been cured by a verbal charge given by consent, the presumption that it was so cured obtains when not negatived and when necessary to support the judgment. Carr v. State, 5 Tex. App. 153.

One of the bills shows an argument by the state’s attorney urging the jury to fix a jail penalty for the reason that a finé would not punish .the appellant in that it would be paid by his father. This was an improper argument, and unexplained, we think, should result in a reversal. The excepted hill, however, is qualified by. the statement that the argument was invited by appellant’s counsel urging the jury not to assess a fine which appellant’s old father would have to pay. This qualification in the bill seems to bring it within the rule laid down by Mr. Branch in section 363 of his An. P. C., wherein he cites a number of decisions of this court supporting the proposition that appellant is not entitled to complain of an argument of state’s counsel which is occasioned and justified í>y his own counsel.

The bills of exception which we have not discussed we have examined, and. we think they present no reversible error.

The judgment is affirmed.

On Motion for Rehearing.

We conclude we were in error in entering a judgment of affirmance in this case.

The special charge complained of was subject to the construction and was doubtless construed by the jury as an instruction that, if the appellant ratified the marriage, he should be convicted of desertion without reference to the conclusion the jury might reach with reference to the other defenses urged by him. A part of the state’s case was to prove that the desertion was without justification. What conditions or facts justify the conclusion that the desertion was without justification is for the jury to solve, as the statute does not define them. Appellant urged and introduced evidence to meet the contention of the state that he was not justified in desertion, and the effect of the special charge was to withdraw this issue from the jury. It is true that the court charged the statute — that is, that the desertion must be without justification — in his main charge, but the effect of the special charge was to impress the jury with the view, in the absence of ratification, the appellant was to be convicted.

In reviewing the matter we are of the opinion that the bill of exceptions which appellant reserved to the action of the court in giving the special charge in question, under the peculiar facts of the .case, was such as to require this court to consider it, and that it presents an affirmative error such as was passed on in the case of Novy v. State, 62 Tex. Cr. R. 492, 138 S. W. p. 139, wherein the court used the following language:

“Ordinarily in a misdemeanor case * * * a defective charge of the court, where no special charge is requested by the appellant, would not be reversible error; but where the charge itself is affirmatively wrong, * * * and an exception is properly taken thereto, * * * and * * * shown by a proper bill of exception, * * * and * * * further set up in motion, for new trial, we cannot hold, and do not hold, that it is not reversible error.”

The motion for rehearing is therefore granted, the judgment of affirmance set aside, and the judgment of the county court reversed, and the cause remanded. 
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