
    (85 Tex. Cr. R. 91)
    WALLACE v. STATE.
    (No. 5324.)
    (Court of Criminal Appeals of Texas.
    March 19, 1919.)
    1. Husband and Wife @=>304 — Wife Desertion-Elements of Offense.
    In a prosecution for wife desertion, the state must show, not only that the husband willfully and without justification deserted his wife and neglected and refused to support and maintain her, but also that he left her in destitute and necessitous circumstances.
    2. Husband and Wife <§=>304 — Wife Desertion.
    In a prosecution brought nine days after the alleged desertion of wife, no desertion was shown, where during such time defendant’s father had paid her $10 for him, and just prior to the alleged desertion the defendant had paid $20 for groceries and left the wife credit on which to purchase groceries.
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    E. S. Wallace was convicted of wife desertion, and appeals.
    Reversed and remanded.
    R. H. Smith, of Ft. Worth, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

This appellant was convicted of wife desertion in the county court of Tarrant county, and his punishment fixed at 30 days in jail and a fine of $25.

The case must be reversed and remanded because of the failure of the evidence to show a violation of the law.

It is held in Windham v. State, 80 Tex. Cr. R. 551, 192 S. W. 248, that not only must the proof show that the husband willfully and without justification deserted his wife, and neglected and refused to support and maintain her, but the state must go further and show that he left her in destitute and necessitous circumstances as well.

It is substantially held in Furlow v. State, 78 Tex. Cr. R. 544, 182 S. W. 308. that if a husband and wife separate, she having means of support at the time, his failure to support her or furnish her such means as he can thereafter will not make him guilty of a violation of this statute, where it is shown that she made no effort to obtain support from him, or to bring knowledge to him that she was in a condition of need.

Authorities are collated in Verse v. State, 193 S. W. 303, which hold that the facts in the case must be such as to show a willful desertion, neglect, or refusal to provide in order to meet the requirements of the law.

In the instant case no such facts are shown. It is true that the wife says her 1 husband deserted her and left her in necessitous circumstances nine days before she filed a complaint against him, but the record otherwise is barren of facts which show either desertion, or that she was necessitous. Due regard must be had in cases such as this to the situation of the parties. Appellant was a salaried fireman of the city of Ft. Worth, receiving $66 per month, and his duties permitted him.only one day and night at honS in each week. It is uncon-troverted that he had arranged credit at a grocery store only a block from his home, and just prior to the alleged desertion had paid $20 on his grocery bill, and the grocer testified that the wife could have continued to get goods upon credit, and that he would have let her have the same as he had theretofore done. She admits that after the date of the alleged desertion she made no effort to get groceries, money, support, or anything else from the appellant. Just what day the alleged desertion occurred is a bit conjectural, and what occurred between the parties is wholly left out of the record. We have searched the entire evidence carefully to see if any of the witnesses say anything as to why or how or under what circumstances the alleged desertion or separation was had. Appellant says there was no separation as far as he was concerned; that he went home to dinner from his work about September 20th, and found his house empty, his wife and baby and furniture all gone.

The wife details no conversation occurring on the day of the alleged desertion, other than that he came home about 11 p. m. the night before, and she asked him what made him late, and he told her it was none of her “damned” business. As to what passed between them on the day she says he deserted her, we are left wholly in the dark. Whether he told her he was tired of home' life, and no longer loved her, or that he did not intend to live with her, or to come back, or further support her, or whether they parted in good will or ill humor, or whether he removed any of his belongings or not — all thesé details and all others are absolutely omitted. The wife says that she filed the complaint against her husband on October 2, 1918, and that at that time she had been deserted by her husband for nine days. She says that when he “deserted” her he left her three days’ provisions; that he left her all the furniture they had accumulated, which she at once sold and appropriated the proceeds. She also admits that during this nine days’ interval after the alleged desertion, and before she filed the complaint, appellant’s father paid her $10 for him. She also admits that she made no effort to communicate with him, or to obtain any money, or provisions, or support from him or on his account prior to the filing of the complaint. We have detailed these facts at length, because, in-our opinion, they wholly fail to show a case of willful desertion of the wife and the leaving of her in needy and necessitous circumstances.

Things might have occurred between the husband and wife on the day of the alleged desertion, which are not disclosed by this record, which might be sufficient to show that there was no intention on appellant’s part to return home. Things might have occurred there between them which would justify the conclusion that he was willfully deserting her; but, if so, the record does not present such facts to us. The salary of the husband was very small, and, as far as the record discloses, went to pay for groceries and make a possible payment upon the house, and it is quite possible that the wife may not have had those things which she desired or felt were her due; but where the husband furnishes to his wife such things as are in accord with his income and with their station in life, and where the proof shows that she has credit upon which she may obtain the necessary things of life, and a home in which are sufficient comforts to enable her to live, and a reasonable share of the money he earned, and there is no showing as to why she left these things and refused to further avail herself of them, we have no option but to hold that the law is not shown to have been violated.

The judgment of the lower court is reversed, and the cause remanded for a new trial. 
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