
    TERRELL v. STATE.
    (No. 5956.)
    (Court of Criminal Appeals of Texas.
    March 2, 1921.)
    1. Statutes <&wkey;14l(2) — Statute as to testimony of wife as to desertion not amendment of statute .as to incompetency in general.
    Vernon’s Ann. Pen. Code 1916, art. 640c, making wife a competent witness against husband charged with wife desertion, held valid as against objection that Const, art. 3, § 36, providing that no law shall be revised or amended by reference to its title and requiring the amended section to be re-enacted and published at length, was not complied with, since such statute is complete within itself and is not an amendment of Vernon’s Ann. Code Cr. Proe. 1916, art. 795, providing that husband and wife in no case can testify against each other except in a criminal prosecution for an offense by one against the other, notwithstanding its effect is to restrict the operation of the latter statute.
    2. Criminal law <&wkey;4l9, 420(12) — Letter inadmissible in absence of evidence that defendant induced its writing.
    In prosecution of wife desertion under Vernon’s Ann. Pen. Code 1916, arts. 640a-640f, a letter addressed to husband held inadmissible as hearsay in absence of a showing that the husband induced its writing, or acted upon it or adopted it.
    3. Husband and wife <&wkey;304 — Proof must show willfulness to sustain conviction for wife desertion.
    Conviction for wife desertion under Vernon’s Ann. Pen. Code 1916, arts. 640a-640f, cannot be had except upon proof that there was a willful desertion of the wife and that she was in destitute or necessitous circumstances.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    R. L. Terrell wag convicted of wife desertion, and lie appeals. '
    Reversed and remanded.
    W. C. Linden, of San Antonio, and Fly & Ragsdale, of Victoria, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The appellant was convicted of wife desertion. See Penal Code, tit. 11, c. 9a.

In one of the subdivisions of the statute the wife is made a competent witness against her husband charged with this offense. • See article 649c. This is not an amendment to article 795 of the Code of Criminal Procedure, wherein it is said that husband and wife “shall, in no case,' testify against each other, except in a criminal prosecution for an offense • committed by one against the other.” Section 36, art. 3 of the Constitution, declaring “no law shall be revived or amended by reference to its title; but * * * the section * * * amended, shall be re-enacted and published at length,” is not applicable. Article 640c is complete within itself. Its effect may be to restrict the operation of article 795, but this alone does not render it obnoxious to the clause of the Constitution mentioned. The question is settled by the decisions of this court and the Supreme Court. See Clark v. Finley, 93 Tex. 177, 54 S. W. 343; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 565; Harris’ Ann. Texas Constitution, p. 275, note 10.

While the appellant was away from home a letter came addressed to him. His wife opened and read it. In her testimony she said:

“I told him about it, and he just laughed at the idea and said that it didn’t make any difference to him; that this girl thought more of him than I did; that if I wanted his letters, he would have them sent to the house if I would let him read them first.”

Over the appellant’s objection the letter was introduced in evidence. It contained statements supporting the inference that the appellant had made love to the girl by whom the letter was written subsequent to his marriage.

The general rule governing such evidence is stated in the Cyclopedia' of Law and Procedure, vol. 12, p. 434, as follows:

“Letters written by the person injured or by third persons, addressed to the accused and received by him, but never answered or acted on by him, are not admissible against him unless they are part of the res geste. Nor is his failure to answer them an admission of the truth of the statements contained in them. In this respect they differ from oral accusations, because otherwise the accused would be at the mercy of any letter writer whose name or address he did not know.”

This is supported by numerous authorities ; among them may be mentioned the following: People v. Colburn, 105 Cal. 648, 38 Pac. 1105; Commonwealth v. Edgerly, 10 Allen (Mass.) 184; Packer v. United States, 106 Fed. 906, 46 C. C. A. 35; Commonwealth v. Eastman, 1 Cush. (Mass.) 189, 48 Am. Dec. 596; Razor v. Razor, 149 Ill. 621, 36 N. E. 963; Learned v. Tillotson, 97 N. Y. 1, 49 Am. Dec. 508; State v. Crowder, 41 Kan. 101, 21 Pac. 208; Hollingsworth v. State, 80 Tex Cr. R. 300, 189 S. W. 488; James v. State, 40 Tex. Cr. R. 195, 49 S. W. 401. .

_ _ In the Hollingsworth Case, 78 Tex. Cr. R. 491, 182 S. W. 465, he was charged with incest with his niece, Cassie Dunn. A letter from her was introduced upon the theory that it had been received by him. It contained declarations inculpating him. It was written subsequent to the time the alleged offense was committed and related to past events. He had not replied to it, adopted it, nor acted upon it. The trial court admitted it in evidence against him, and because thereof this court reversed the judgment of conviction. In the same case, upon a subsequent appeal, 80 Tex. Crim. Rep. 300, 189 S. W. 488, the same ruling was made with reference to another letter; There are exceptions to the rule which it is not necessary here to detail. The evidence introduced against the appellant was brought within none of the exceptions to the rule excluding such letters. The letter was the declaration of the writer thereof. Appellant admitted that the girl who wrote the letter thought much of him; but, aside from the recitals in the letter, we find nothing to show that appellant induced its writing, acted upon it, or adopted it. Its contents was hearsay, and upon that ground it should have been excluded.

Other bills of exceptions have been examined. In none of them is there presented any matter requiring review. The sufficiency of the evidence is challenged; but contemplating another trial, we will not review it, suffice it to say that conviction cannot be had except upon proof that there was a willful desertion of the wife and that she was in destitute or necessitous circumstances. Windham v. State, 80 Tex. Cr. R. 551, 192 S. W. 248; Verse v. State, 81 Tex. Cr. R. 48, 193 S. W. 303; Lamm v. State, 85 Tex. Cr. R. 48, 210 S. W. 209; Wallace v. State, 85 Tex. Cr. R. 91, 210 S. W. 206.

Because of the error pointed out, the judgment will be reversed and the cause remanded. 
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