
    HOLLIEN v. STATE.
    (No. 5894.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1920.)
    1. Criminal law <@=>210 — Witnesses ©=>61(2) —Wife a competent witness against husband, charged with desertion, and may make complaint.
    Under Vernon’s Ann. Pen. Code 1916, art. 640c, a wife was a competent witness against her husband, and complaint, sworn to by her, charging him with desertion of wife and child in destitute and necessitous circumstances, was not void.
    2. Parent and child ©=>17(6) — Evidence insufficient to support conviction of child desertion.
    Evidence, not making clear that defendant’s child was in destitute or necessitous circumstances, and tending to negative any willful neglect on defendant’s part, 'held insufficient to support judgment convicting him of desertion of the child.
    Appeal from Tarrant Oounty Court; Hugh L. Small, Judge.
    Hugo Hollien was convicted of wife and child desertion, and he appeals.
    Judgment reversed.
    Simpson, Moore & Ammerman, of Ft. Worth, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The prosecution is under article 640a, Penal Code, for the desertion of wife and child in destitute and necessitous circumstances.

The wife, under article 640c, is made a competent witness against her husband, and complaint, sworn to by her, was not void.

The parties were married about the first of the year 1918, and separated in August of that year. The prosecution began about the 1st of April, 1919. After the marriage they lived together for several months, when the wife received a telegram, advising her that her mother was sick. She and her husband went to her mother’s home in Ft. Worth. The mother was only slightly sick, and soon recovered, but the wife declined to further live with her husband. She testified that she had known him but a week when the marriage took place; that she had never loved him, but married him because she was in an ill humor with her uncle and desired to spite him. She also said that her husband had requested her to return to him. He later wrote her two letters, requesting her to live with him. She filed suit for divorce, but failed to press it to judgment. He went into the army, and later resided in South Texas. At the time of the separation she was pregnant, but had stated to the appellant that she did not intend to give Birth to the child, but would' take medicine to prevent it. Against this he protested. She gave birth to the child about seven months later, and says that she wrote appellant about it in the fall of 1919. The evidence tends to show that he did not learn of the birth of the child until about the time this prosecution was begun. She continued to reside in her mother’s home, and kept the child there, and was earning §12.50 per week, the circumstances of the mother not being disclosed, but her daughter and child seem to have been welcome members of her household.

The court acquitted the appellant of wife desertion, and we think the evidence does not support the judgment convicting him of desertion of his child. It is not made clear that the child was in destitute or necessitous circumstances, and the evidence tends to negative any willful neglect upon appellant’s part. The proof requisite to establish the offense is adverted to in Wallace v. State, 85 Tex. Cr. R. 91, 210 S. W. 206; Hood v. State, 220 S. W. 555; Windham v. State, 80 Tex. Cr. R. 551, 192 S. W. 248; Verse v. State, 81 Tex. Cr. R. 48, 193 S. W. 303, and other cases.

The insufficiency of the evidence requires a. reversal of the judgment, which is ordered. 
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