
    O'BRIEN v. STATE.
    (No. 6404.)
    (Court of Criminal Appeals of Texas.
    Nov. 16, 1921.)
    1. Husband and wife <@==>302 — Statute authorizes conviction for failure to support though there was no desertion.
    Vernon’s Ann. Pen. Code 1916, art. 640a, yaking it an offense for any husband to willfully and without justification desert, neglect, or refuse to provide for the support and maintenance of his wife who may be in destitute or necessitous circumstances, authorizes a conviction for neglecting or refusing to provide for the wife’s support and maintenance, though there was no desertion of the wife by the husband.
    2. Husband and wife <@=>314 — Court properly charged statutory rule that failure to support is prima facie proof of willfulness.
    On the trial of a husband for willfully neglecting and refusing to provide for his wife’s support and maintenance, the court properly charged the provisions of Vernon’s Ann. Pen. Code 1916, art. 640c, that proof of neglect or refusal to provide for the support and maintenance of the wife shall be prima facie evidence that such neglect or refusal was willful.
    3. Constitutional law ©=>55 — Legislature may establish rulés of evidence.
    The Legislature may within certain limits establish rules of evidence such as that contained in Vernon’s Ann. Pen. Code 1916, art. 640c, making proof of a husband’s neglect or refusal to provide for his wife’s support and maintenance prima facie evidence that the neglect or refusal was willful.
    4. Husband and wife ©=>314 — Instruction for husband if he furnished wife money in proportion to earnings should have been given.
    On the trial of a husband for refusing to provide for his wife’s support and maintenance, a requested instruction that, if he provided her with sums of money in proportion to his earning capacity, he should be found not guilty, should have been given, where it was appropriate to the facts developed, and his defensive theory was nowhere affirmatively presented.
    5. Husband and wife ©=>304 — Husband furnishing wife separated from him with money he was able to save not guilty of willfully neglecting to support.
    Where a wife refused to live with her husband in a room secured by him and not shown to be in any way objectionable, and such refusal put him to the expense of eating at a restaurant and paying the expense of a room, but he nevertheless furnished the wife with such money as he was able to save from his work over and above his expenses, he was not guilty of willfully neglecting or failing to provide for her.
    Appeal from Wichita County Court; Guy Rogers, Judge.
    Orval O’Brien was convicted of neglect and refusal to provide for the support and maintenance of his wife, and he appeals.
    Reversed and remanded.
    Mathis & Caldwell, of Wichita Falls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appeal is from conviction for neglect and refusal to provide for the support and maintenance of the wife, in which punishment was assessed at a fine of $100 and 30 days in jail.

The information alleges, omitting the formal parts, that appellant “did then and there unlawfully and willfully and without justification desert, neglect, and refuse to provide for the support and maintenance of his wife, Sopbronia O’Brien, who was then and there in destitute and necessitous circumstances.”

After hearing all of the evidence in the case, the court instructed the jury that the state had failed to make out a case in so far as appellant’s being guilty of deserting his wife was concerned, and instructed them that upon that issue they would find defendant not guilty. Appellant then requested the court to charge the jury peremptorily to return a general verdict of not guilty, upon the ground, as alleged by him, that article 640A, Vernon’s P. C:, under which this prosecution was had, does not provide for the conviction of an accused for neglecting or refusing to provide for the support and maintenance of his wife, unless the evidence also shows that he deserted her. _ Upon this proposition counsel for appellant cites us to the following authorities: Terrell v. State, 228 S. W. 240; Wallace v. State, 85 Tex. Cr. R. 91, 210 S. W. 206; Reid v. State, 229 S. W. 324; Mercardo v. State, 86 Tex. Cr. R, 559, 218 S. W. 491, 8 A. L. R. 1312; Windham v. State, 80 Tex. Cr. R. 551, 192 S. W. 248.

We have examined all the cases cited, and, while the language used in some instances couples desertion with the neglect and refusal to provide for the support and maintenance of the wife, yet we find none of the cases support appellant’s proposition. So far as we may gather from the opinions in the cases referred to, the accused therein was charged with the desertion of his wife, and the exact question now presented to the court seems not to have been raised. So far as we have been able to ascertain from an investigation of the authorities, this is the first time this court has been called upon to construe the article in question in the respect suggested. We believe a fair construction of the statute would be as though it read “that any husband who shall willfully or without justification desert his wife, etc., would be guilty,” or that any “husband who shall willfully or without justification neglect or refuse to provide for the support and maintenance of his wife, etc., would be guilty.” If the evidence should disclose a state of facts where the husband may not have actually deserted his wife, but continued to live with her and yet willfully or without justification neglected or refused to provide for her support and maintenance when she was in destitute and necessitous circumstances, he being able to so support and provide for her, we can see no reason why, under the law, he might not be guilty of an offense.

The last clause of article 640c, Vernon’s P. C., reads as follows:

“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.”

The trial judge in the fifth paragraph of his charge submitted the foregoing provision to the Jury. By proper exceptions appellant complained of the submission of this section of the charge upon the ground that it was upon the weight of the testimony, and requested the court to. eliminate the same from his instructions to the Jury, which the court declined to do. It is well recognized that the Legislature can, within certain limits, establish rules of evidence. Wharton’s Crim. Evidence (10th Ed.) vol. 2, §§ 715 and 715a. This séems to be what the Legislature has done in'regard to the offense under consideration. They have practically said by the language of article 640c, when the act of desertion, or neglect and failure to support, is shown, then the presumption of law attaches that the same was done willfully. This question was under consideration by this court in the case of Floeck v. State, 34 Tex. Cr. R. 314, 30 S. W. 794. The court there was considering the constitutionality of an act of the Legislature (Laws 1893, c. 121, § 7) which provides:

“That the paj'ment of the United States special tax as a seller of spirituous, vinous or malt liquors shall be held to be prima facie evidence that the persons paying such tax are engaged in selling such liquor.”

The foregoing provisions of the acts of the Legislature were given in charge to the jury, and became the target for a violent assault, which was considered at great length by this court, which held the same to be not unconstitutional, and that it was not improper for the court to give it in charge. In connection with the charge in that case, and immediately following it, the court told the jury that by “prima facie” was meant, not that the evidence is conclusive, but that it may be rebutted or overcome by evidence to the contrary. It was a proper charge in that case, and would have been a proper charge in the instant case, and would have likely relieved the appellant of harm, if any, which came to him by reason of the charge in question having been given. However, there was no charge requested defining what was meant by “prima facie” evidence, and therefore we cannot consider the matter further.

Appellant requested the court to charge, in substance, that if between the date of their separation and that of filing the complaint he had provided her with sums of money in “proportion to his earning capacity, and in proportion to the amount of money he was earning,” the jury would find defendant not guilty. We believe this charge should have been given to the jury. Nowhere in the main charge of the court is appellant’s defensive theory affirmatively presented, and we think the charge requested was appropriate under the facts developed upon the trial. We entertain grave doubts as to the sufficiency of the evidence to support the conviction. The record discloses that, unfortunately, the married life of appellant and the prosecutrix had not been altogether pleasant. Separations had occurred between them prior to the one out of which this prosecution grew, the details of which are not found in the record. These parties were married in November, 1919. On the 3d day of February, 1921, pros-ecutrix left appellant and went to the home of her mother. She gave as a reason for so doing that appellant was dissatisfied because she was in a family way, and suggested that she procure an abortion. This is denied by appellant. On February 3d appellant, for some reason not disclosed by the record, desired to give up the premises where they were living, and secure another room. This did not seem to be satisfactory to the prosecu-trix. She admits that she got angry upon this occasion and broke up some dishes. Appellant did secure another room and prosecu-trix admits he told her she could come if she wanted to and if she did not desire to come he did not give a “damn.” The record shows that immediately upon this separation prosecutrix sued for a divorce. Notwithstanding the pending of the divorce proceedings, the prosecutrix admits that appellant had furnished her with from $3 to $5 per week, once or twice giving her $10 per week, and sometimes missing a week. From February 3d to April 28th prosecutrix admits she had received from appellant $55 or $60; that on the 27th day of April, the day before this complaint was filed, she applied to appellant for money and he declined to give her any at that time. It does not appear from her testimony why he declined to furnish her with money upon this occasion. The evidence of' appellant is to the effect that after his wife left him and went to her mother’s he was compelled to pay $6 a week for a' room and eat at the restaurant; that as economically as he could get along it cost him about $25 per week. He says that he gave her money upon every occasion she asked for it, except immediately before she filed this complaint; this was the middle of the week, and he did not have it at the time, as he did not receive his pay until Saturday, and claims he told her he would give it to her on Monday. It appears that she filed this prosecution immediately after being disappointed in getting the money upon this occasion.

If appellant expressed a willingness to live with his wife, or to have his wife go with him to his new room, which for some reason he thought it proper to secure (and which the evidence does not disclose was in any way objectionable), and she refused to do so, and it became necessary for him to be put to the expense of eating at a restaurant and paying the expense of a room, and, notwithstanding this, he furnished his wife with such money as he was able to save from his work over and above his expenses, he would not be guilty under the law of willfully neglecting or failing to provide for her. His testimony is that he averaged about $30 per week from his work. His wife claims he was making as much as $40 per week. The record speaks through no other witness as to what the earning capacity of appellant was. Irving v. State, 73 Tex. Cr. R. 615, 166 S. W. 1166; Reid v. State, 229 S. W. 324.

For the errors discussed, the judgment of the trial court is reversed, and the cause remanded. 
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