
    BARRIOS v. STATE.
    (No. 5067.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.)
    1. Criminal Law <©=>703, 764(1) — Death §= 2(1) — Presumption prom Absence.
    The presumption of death arising from seven years’ absence is not absolute under Vernon’s Saylos’ Ann. Civ. St. 1914, art. 5707, and in prosecution of second husband for desertion of wife, it was error to so instruct concerning the former husband, there being rebutting evidence, and it is immaterial that under Pen. Code 1911, art. 482, the wife would be exempt from conviction of bigamy.
    2. Criminal Law <§=1090(14) — Matters Reviewable — Bill oe Exceptions — Aeeirma-tive BIrr or.
    In prosecution for wife’s desertion, where husband claims wife had another husband living, evidence being conflicting, it was affirmative error to charge that the presumption of death after seven years’ absence was absolute, and the giving of such instruction was reviewable, although no bill of exceptions was reserved to the refusal of a special correcting charge.
    3. Criminal Law <§=1090(14) — Statutes §= 140 — Amendatory Act — Matters Reviewable — Exceptions.
    Acts 35th Leg. c. 177 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), does not amend the procedure in criminal cases, which is embodied in Acts 33d Leg. c. 138 (Vernon’s Ann. Code Or. Proc. 1916, arts. 735, 737, 737a, 743), and special charges refused and not brought up for review by bills of exceptions cannot be considered.
    Appeal from Dallas County Court, at Law; W. L. Thornton, Judge.
    J. D. Barrios was convicted for desertion of his wife and child, and he appeals.
    Reversed and remanded.
    Williams, Puckitt & Harty and John White, all of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted for desertion of his wife and child under article 640a, Vernon’s Ann. Pen. Code 1916.

Appellant and his alleged wife were 'married in Texas in 1914, and that he abandoned her is a conceded fact which he justifies on various grounds, among them, that she was not his wife. This is based upon the alleged fact that he married her believing she was a maiden, but that she was in fact the wife of another man living. 'She married a man named Zapata in 1905. He killed her father in 1906, and fled to Mexico. Her mother, since deceased, went to Mexico, and claimed to have learned that Zapata was dead, and so informed Mirs. Barrios. The fact of his death was controverted. Several witnesses claimed to have heard of him at various times during the period of his absence, some of them subsequent to the time that it was claimed that he died.

The court instructed the jury that, if during his seven years’ absence bis wife had not known of his whereabouts, the presumption of death was absolute. This was not tho language, but the substance, of the charge, to which exception was raised. We think this charge was upon the weight of the evidence. Our statute (article 5707, Vernon’s Sayles’ Civil Stats.) declares:

“Any person absenting himself beyond the sea or elsewhere for seven years successively shall be presumed to be dead, in any case wherein his death may come in question, unless proof be made that he was alive within that time.”

The presumption of death arising from seven years’ absence is not absolute. See Wharton Crim. Law, vol. 2, § 809. The statute in question, in terms, makes the presumption rebuttable when it says, “unless proof be made that be was alive within that time.” The courts so construe it. See Gorham v. Settegast, 44 Tex. Civ. App. 254, 98 S. W. 668; Francis v. Francis, 180 Pa. 644, 37 Atl. 120, 57 Am. St. Rep. 668. It is believed the fact that under article 482, P. C., Mrs. Barrios would have been exempt from conviction of bigamy would not control. The prosecution is not against her, but upon appellant, based upon the fact that she, being his wife, he had abandoned her. Before his guilt of deserting his wife could be established, it was essential that it appear that he had a wife. The woman he deserted could not have been bis wife if she, at the time of the purported marriage, had a living husband. Her previous marriage having been established, and there being evidence rebutting tho presumption of the death of her husband, it was essential to a fair trial that the jury be permitted to solve the controverted question under a proper charge. This we think was not done.

The state’s contention that the bill of exceptions reserved to the court’s charge fails to show error in the absence of a bill of exceptions reserved to the refusal of a special charge correcting the error in the charge complained of would be sound as applied to a case where the charge was not affirmatively wrong. Teem v. State, 79 Tex. Cr. R. 285, 183 S. W. 1144. We think the error in the charge in question was affirmative, and that the trial court should have withdrawn it in response to the objections that were made to it at the time of the trial and preserved in the bill of exceptions which brings the matter before this court for review. See Novy v. State, 62 Tex. Cr. R. 492, 138 S. W. 139.

We find in the record a number of special charges requested which were refused, with reference to which no bills of exceptions are preserved. The state insists that these special charges cannot become the subject of review in -the absence of bills of exceptions. This states the correct rule. Giles v. State, 66 Tex. Cr. R. 638, 148 S. W. 317; Brown v. State, 73 Tex. Cr. R. 571, 166 S. W. 508; Ferguson v. State, 79 Tex. Cr. R. 641, 187 S. W. 476; Ellis v. State, 189 S. W. 1074; Moore v. State, 78 Tex. Cr. R. 171, 180 S. W. 677; Cline v. State, 79 Tex. Cr. R. 229, 183 S. W. 1152. Counsel for appellant meets this view by drawing attentioi* to chapter 177, Acts 35th Leg.- p. 389 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974). In this chapter, chapter 59, p. 133 of the act of the Thirty-Third Legislature is amended. This chapter relates to procedure in civil cases, and is article 1974, Rev. Civil Stats. 1913, and also is chapter 177, supra. This chapter does not amend the procedure in criminal cases which is embodied in chapter 138 by the Acts 33d Leg. p. 278, which amends articles 735, 737, 743, and adds article 737a, tit. 8, e. 5, C. C. P. The special charges refused and not brought up for review by bills of exceptions cannot be subject for consideration in this court.

For the error in the charge pointed out, the judgment of the lower court is reversed, and the cause remanded. 
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