
    BEAVER v. STATE.
    (No. 7792.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1923.)
    Bastards <©=471/2 — !Refusal to support illegitimate “child” or “children” not punishable as child desertion.
    In view of the common-law rule that a father is not responsible for the maintenance of an illegitimate child, Vernon’s Ann. Pen. Code 1916, art. 640a, which penalizes desertion, neglect, or refusal to provide for the support of one’s “child” or “children” under 10, means legitimate children, especially in view of article 640c, permitting disclosure of confidential communications, etc.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Child— Children.]
    Appeal from Travis County Court; Geo. S. Matthews, Judge.
    Howard A. Beaver was convicted of deserting, neglecting, and refusing to provide for the support and maintenance of his min- or child, and he appeals.
    Reversed and remanded.
    Dickens & Dickens, of Austin, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   HAWKINS, J.

Appellant was convicted for willfully deserting, neglecting, and refusing to provide for the support and maintenance of his minor child, and his punishment assessed at a fine of $50.

Our statute, article 640a, Vernon’s Ann. Pen. Code 1916 (chapter 101, § 1, of the Acts of the Legislature of 1913), provides for the punishment of “ * * * any- parent who shall willfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years in destitute or necessitous circumstances * * *"

The mother of the child in question and appellant had never been married. The point ,is made that, the child being illegitimate, the statute in question does not apply.

At common law the father is not responsible for the maintenance of an illegitimate child. Corpus Juris, § 31, vol. 7. Under express provisions of the statute of some states, a parent who willfully refuses or neglects to provide for his or her bastard child may be punished therefor, but a general statute providing for the punishment of any person who shall neglect to provide for a child of which he or she shall be the parent applies only to parents of lawful children, and not to those' of illegitimate birth. Corpus Juris, § 38, vol. 7, and authorities thereunder cited. When the word “child” or “children” is used in a statute (unless the statute clearly reflects the contrary), it means a legitimate child or children only. 2 Words and Phrases, First Series p. 1123. Construing our own civil statute upon the law of descent and distribution, the Supreme Court, in Hayworth v. Williams, 102 Tex. 308, 116 S. W. 43, 132 Am. St. Rep. 879, holds that while there is some conflict of authorities upon the meaning of the word “child” when used in a statute, deed, or will, that the decided weight of authority is in favor of the construction that the use of such word refers alone to legitimate children. In some states express statutes have been enacted providing for certain procedure to determine the parentage of an illegitimate child, and requiring the father to support it. Unless the statute upon which this prosecution is based has done so, we have no law in this state abrogating the common-law rule heretofore stated. See Van Horn v. Van Horn, 107 Iowa, 247, 77 N. W. 846, 45 L. R. A. 93.

The acts of the Legislature of 1913 do not leave us entirely without information as to what children were in the minds of the lawmakers at the time the law in question was passed. Section 3 of said law, being now article 640c, Complete Texas Statutes 1920, or Vernon’s Ann. Pen. Code 1916, provides as follows:

“ * * * In no prosecution under this act shall any existing statute prohibiting disclosures of confidential communications between husband and wife apply, to strictly relevant facts and both husband and wife shall be competent and compellable witnesses to testify against each other to any and all relevant matters, including the fact of sdch marriage, and the parentage of such child or children. Proof of the desertion of such wife, child or children in destitute or necessitous circumstances or of neglect or refusal to provide for the support and maintenance of such wife, child or children shall be prima facie evidence that such desertion, neglect or refusal is willful.”

It is clear from the foregoing language that the offense undertaken to be defined and denounced by the Legislature was for a failure to support a legitimate child, and we would be* unauthorized to extend the provisions of the law in question to include a father for the failure to support a child of illegitimate birth. The rule of the common law has been so long established and so uniformly recognized that until the Legislature speaks in unmistakable terms showing an intention to change the rule in this state, we must perforce hold that the statute in question does not apply in the present instance.

The judgment is reversed, and the cause remanded. 
      
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