
    MATTHEWS v. STATE.
    (No. 5322.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.)
    1. Husband and Wife <3=313 — Desertion —Evidence.
    In a prosecution under Vernon’s Ann. Pen. Code 1916, art. 640a, for desertion and failure to support a wife and child, evidence held, sufficient to support a conviction.
    2. Criminal Raw <3=1169(1) — Appeal — Haemless Ebeob — Evidence.
    In a prosecution for desertion and failure to support a wife and child, evidence that defendant’s wife married him when he was drunk and that she drank whisky tended to support the defense, and, if immaterial or incompetent, was harmless.
    Appeal from Harris County Court at Law; Walter E. Monteith, Judge.
    William C. Matthews was convicted of deserting and failing to support his wife and three year old son, and he appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged and convicted of deserting and failing to support his wife and three year old son. The punishment, fixed was confinement in the county jail for a period of six months.

The statute (article 640a, Vernon’s Ann. Pen. Code 1916) provides that any husband who shall willfully, or without justification, desert, neglect, or refuse to provide for the support and maintenance of his wife, who may be in destitute or necessitous circumstances, or any parent who shall willfully, or without justification, neglect, or refuse . to provide for the support and maintenance of his child under the age of 16 years, in destitute or necessitous circumstances, shall be deemed guilty of a misdemeanor.

The evidence was such as to justify the conclusion that appellant was an able-bodied and capable man; that he had been for several months prior to the beginning of the prosecution earning $5 or $6 per day. He admitted on the trial, taking place in July, 1918, that during the year he had furnished for the support of his wife and three year old child but the sum of $5. It appears that his wife was working in a bagging factory for $7 or $8 a week, and had no other means of support for herself and child; that they depended in a large measure upon charity. He attempted to justify his neglect upon the ground of infidelity on the part of his wife, which theory the evidence wholly failed to sustain, and it appeared that, while he did not live in the same house with her, he did visit her from time to time and engage in sexual intercourse with her.

We are unable to accept the proposition advanced by the appellant that the evidence is insufficient to support the conviction. One of the witnesses for the. appellant testified that his wife married him when he was drunk. This witness was asked upon cross-examination if appellant’s wife drank whis-ky, to which an affirmative reply was given, and exception was reserved upon the ground that it was immaterial and incompetent. We are unable to comprehend its relevancy from the standpoint of the state. It tended, however, to support the appellant’s defense, and was clearly harmless, if immaterial or incompetent.

The judgment is affirmed.  