
    HURST v. STATE.
    (No. 6564.)
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1921.)
    1. Husband and wife &wkey;s312— Indictment and information <&wkey;86(2), 87(3) — Information charging wife desertion held sufficient.
    Information charging that on specified date, “and before the filing of this information in the said county of Rains and state of Texas,” the defendant deserted a named person, “who was then and there his lawful wife,” held suflieient as against contention that it did not state the time or place of the desertion, and did not allege that the defendant and the named person were lawfully married.
    2. Criminal law <&wkey;!09l (9) — Bill of exceptions to refusal ef special charges not shown to have been presented to court before reading of main charge held insufficient.”
    Bill of exceptions complaining of refusal to give certain special charges, without showing that the special charges were presented to the court prior to the reading of the main charge, held insufficient.
    3. Criminal law <&wkey;4!9, 420(8) — Testimony as to statement made in defendant’s absence, with which defendant was not shown to have any connection, held inadmissible.
    In prosecution for wife desertion, in which defendant claimed that wife had left him and had returned to her father’s home, the wife’s testimony that she was told by the wife of defendant’s brother that defendant was not going to live with her any more and that she might as well go back to her father’s home, admitted over defendant’s objection, though defendant was not present when his sister-in-law was claimed to have made the statement, and was not shown to have known that his sister-in-law had made the communication to his wife, or had instigated it, held ground for reversal; the testimony being hearsay.
    Appeal from Rains County Court; H. D. Garrett, Judge.
    Bill Hurst was convicted of wife desertion, and be appeals.
    Reversed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for wife desertion. The information charges that—

* * * On or about the 18th day of April, 1920, and before the filing of this information in the said county of Rains and state of Texas, one Bill Hurst did then and there unlawfully, willfully, and without justification desert Flora Hurst, who was then and there his lawful wife, and the said Flora Hurst was then and there in destitute circumstances.”

The exception to the information is that it does not state the time or place of the desertion; that it does not allege that the appellant and Flora Hurst were lawfully married. We are unable to coincide with the views of tlie appellant. We think the indictment is not subject to the criticisms addressed to it.

In bill of exceptions No. 1, complaint is made of the refusal of the court to give certain special charges. The bill is insufficient to show error. It does not appear therefrom that the special charges were presented to the court prior to the reading of the main charge. Oliver v. State, 58 Tex. Cr. R. 50, 124 S. W. 637.

Appellant and Flora Hurst were married on April 20, 1020, and lived together for three weeks, at the end of which time the appellant went to another county, returning in a few days, as we understand the record, and finding that his wife had gone to her father’s home.

Appellant testified that he had left to obtain a stalk cutter, and was advised over the telephone by his brother that it would not be needed; that he spent a short time at his father’s home and returned, finding his wife gone; that he remained for about six weeks, when he sold his crop and went out West.

A witness testified that appellant said lie had left his wife. This appellant denied. The father of appellant’s wife lived near by, and he said .that he had no objection to appellant coming to his house. The only reason we find in the record explaining the failure of appellant’s wife to go to her home on his «return is her testimony that she was told by the wife of appellant’s brother “that the appellant was not going to live with her any more and that she had as well go back to her father’s home.” This was admitted against appellant’s objection. Nothing in the evidence suggests appellant’s connection with this statement. It affirmatively appears that he was not present when it was made by his sister-in-law. The court, in qualifying the bill, says it was to controvert appellant’s testimony that he would have lived with his wife if she had returned to his home. The sister-in-law did not admit the conversation. In the absence of some testimony showing that he knew that his sister-in-law had made the communication to his wife, or that he instigated it, we think the evidence was not admissible.

It was hearsay and harmful, arid requires a reversal of the judgment, which is ordered.  