
    BROWN v. STATE.
    (No. 7361.)
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1923.
    Appeal Reinstated and Opinion on Rehearing Oct. 31, 1923.)
    1. Bail <&wkey;>70 — Appeal bond must be approved.
    Where an appeal bond is not approved by either the sheriff or the judge who tried the case as required by Code Or. Proc. 1911, art. 918, as amended by Acts 36th Reg. (1919) c. ■18 (Vernon’s Ann. Code Cr. Proc. Supp. 1922, art. 918), th.e appeal must be dismissed.
    On Rehearing.
    2. Criminal law <&wkey;595(IO) — Continuance for absence of witnesses held improperly refused.
    In a prosecution for child and wife desertion, where the defense was that accused did not willfully desert his wife and child, but was justified on account of his wife’s infidelity and because the child was not his, it was error to .refuse a continuance for the absence of witnesses who would have given testimony in support of such defense, though relating to specific acts of misconduct, due diligence having been shown.
    3. Husband and wife <&wkey;3!3 — Exclusion of message from deserted wife to alleged paramour held improper in desertion case.
    In a prosecution for child and wife desertion, where the defense was that the defendant was justified on account of his wife’s infidelity and because the child was not his, evidence of the contents of a letter by defendant’s wife after the separation, in which she sent a message to one with whom she was charged with having been intimate, held improperly excluded.
    4. Husband and wife <®=^313 — Exclusion of evidence as to infidelity of defendant’s wife held improper in desertion case.
    In a prosecution for child and wife desertion, wherein the defense was that desertion was justified by the wife’s infidelity and because the child was not defendant’s, it was error to exclude testimony that men were going to defendant’s house in his absence.
    5. Criminal law <&wkey;>772(6) — Defendant held entitled to instruction as to affirmative defense in prosecution for desertion.
    In a prosecution for desertion of wife and child, wherein the defense was that the desertion was justified by the wife’s infidelity and because the child was not defendant’s, defendant was entitled to an affirmative charge on his defense.
    <¡&wkey;For other cases see same topic and KEÍ-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Kaufman County Court; W. P. Williams, Judge.
    Jim Brown was convicted of child and wife desertion, and he appeals.
    Reversed and remanded on rehearing.
    Cooley & Crisp, of Kaufman, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted of a misdemeanor, from which he appeals. He seeks enlargement pending the same upon a bond, which, as it appears from the record, is not approved either by the sheriff or the judge who tried the cause. Article 918, C. C. B., as amended by Acts 36th Leg. (1919), c. 18 (Vernon’s Ann. Code Cr. Proc. Supp. 1922, art. 918); Sweak v. State, 91 Tex. Cr. R. 373, 239 S. W. 615; Smith v. State, 92 Tex. Cr. R. 436, 244 S. W. 511.

For the defect in the bond, the appeal must be dismissed.

On Rehearing.

Appellant was convicted for child and wife desertion, and his punishment assessed at confinement in the county jail for one year and a fine of $50.

The appeal was heretofore dismissed because the record as it then appeared failed to show that the appeal bond had been approved by the proper officer. It having been shown, that this was caused by an error on the part of the clerk in copying the bond into the transcript, and that in fact it was properly approved, the appeal is reinstated, and the case will now be considered upon its merits.

There are two counts in the information; the first charging willful desertion of the minor child without justification, and the second charging the willful desertion of the wife without justification. Appellant defended upon the ground that his wife was untrue to him and that the child he was charged with having deserted was not his child. Appellant testified that he had heard rumors- of the infidelity of his wife, but that he did not believe them to be true until she admitted it to him and told him the child was not his, whereupon he immediately left her. It is not necessary to set out the evidence introduced by the state, but it is sufficient to say that an issue was joined as to the character of appellant’s wife. '

The information was filed on May 18th, and the case was Called for trial on May 24th. Application for continuance was filed in which it is shown that process for the absent witnesses was issued on the very day the information was filed, and that all of said witnesses had been served with process with the exception of one. There is nothing in the record to controvert these allegations of diligence, and we therefore take them as true. Appellant alleges that he could prove by Mrs. Bailie Pettigrew that she had frequently seen men around his house with his wife while he was away; that she had frequently seen men go in the house and close the doors and windows when she knew appellant was not at home; that a short time before the separation she told appellant about this and cautioned him to watch his wife. He further alleges that he could prove practically the same facts-by Ruby Pettigrew; also that he could prove by one Bill Taylor that a short time before the separation appellant’s'wife made improper advances to Mm, which lie refused and upon which she insisted; that the night before the separation occurred he told appellant of this and of things he had heard about her of like character; also that he could prove by one Mrs. Rambert that she was at appellant’s house on the afternoon before he left his wife, and heard his wife tell appellant that the baby was not his, and that he might as well understand that. He also alleged in his application that he could prove by a number of these absent witnesses that they had heard appellant’s wife tell him that she “did not want to live with him and hoped that he would leave her alone in order that she might live her own life.” Just why the learned trial judge overruled this application for continuance we have been unable to ascertain, unless it be the same theory upon which the case is briefed for the state, viz. that it was an effort on the part of appellant to prove immorality on the part of his wife by isolated acts of misconduct. It is true this cannot be done when the purpose of such proof is the impeachment of a female witness. See Hays v. State, 90 Tex. Cr. R. 355, 234 S. W. 898, and authorities therein cited. This was not the purpose, as we understand it, of appellant in seeking to have the witnesses present and testify as it is alleged they would. He was defending upon the ground that he did not willfully desert his wife or child, but that he was justified in having done so on account of his wife’s infidelity, and because the child was another man’s and not his. The testimony of the absent witnesses was pertinent upon this issue and the learned trial judge fell into error in not having granted the continuance.

Appellant offered to introduce the contents of a letter written by appellant’s wife after the separation to appellant’s mother, in which she sent a message to Wesley Brown, appellant’s brother. The wife denied having written certain portions of it. Wesley Brown was one of the men with whom appellant’s wife was charged with having been intimate. The contents of the letter may not have been particularly cogent, but, as presented in the bill it appears to have been admissible, and it was for the jury to determine its weight.

Appellant also should have been permitted to prove by the witness Reed the conduct of the men who were working for him relative to going to appellant’s house in his absence.

Complaint is made at the charge because it failed to submit affirmatively the defensive issues, and a special charge was presented covering this omission. We .believe this criticism of the charge is well founded. On another trial the jury should be affirmatively charged upon appellant’s defense.

JEfor the reasons indicated, the judgment must be reversed, and the cause remanded.  