
    PYBUS v. STATE.
    (No. 7241.)
    (Court of Criminal Appeals of Texas.
    May 2, 1923.
    Rehearing Denied June 6, 1923.)
    1. Parent and child <&wkey;l7(6) — In prosecution for abandonment, testimony of wife as to her pregnant condition admissible.
    In a prosecution for child desertion, testimony by defendant’s wife that at the time he left her she was in delicate health and that her second child was born some two months after appellant left was properly received, as tending to show whether the child abandoned was left in destitute and necessitous circumstances, defendant’s letter to his wife directing her to turn the child over to his parents and threatening that he would have the child half ■ the time in any event, and as tending to rebut defendant’s suggestion that his wife, though she wanted to keep the child, she was unwilling to contribute to his support.
    2. Criminái law <&wkey;l 159(3) — Conflicting issues of fact for jury.
    The solution of conflicting issues of fact is for the jury, who having the witnesses before them can observe them and their manner of testifying and more accurately judge of the truth and weight of their testimony.
    3. Parent and child <&wkey;I7(6) — Evidence sufficient to warrant conviction for abandonment.
    In a prosecution for child abandonment, evidence held to warrant defendant’s conviction.
    4. Criminal law <&wkey;322(4) — Instruction as to destitute and necessitous circumstances of child not error.
    In a prosecution for child abandonment, there was no prejudicial error in an instruction referring to the destitute and necessitous circumstances of the child alleged to have been abandoned, where the charge as a whole instructed the jury that they must find beyond a reasonable doubt that defendant abandoned such child and neglected and refused to support and maintain him, and that at the time such child was in destitute and. necessitous circumstances.
    5. Parent and child <&wkey; 17(7) — Instruction in prosecution for child abandonment properly refused as without support in evidence.
    In a prosecution for child abandonment, an instruction requested by defendant to the effect that if he had provided a place with his parents where his wife and child should stay during Ms absence he should not be found guilty was properly refused as without support in the evidence, where the defendant husband provided no funds or means by which the child should be supported or maintained, and the testimony most favorable to defendant merely tended to show that defendant’s parents were willing to .take the child for a part of the time ¡.and that his sister was willing to take it for a part .of .the time.
    On Motion for Rehearing.
    .6. Parent and child <&wkey;>17(6) — Evidence of wife’s pregnancy admissible to show willful character of defendant’s child abandonment.
    In a prosecution for child abandonment the wife’s testimony as to her inability to contribute to the support of the child by reason of hdr advanced pregnancy, and that two months after defendant’s absence she gave birth. to another child, is admissible to show the willful and unjustifiable abandonment by defendant at a time when his care and-"support were most necessary. .
    7. Criminal law <§==>! 159(2) — 'Verdict of jury supported by evidence not disturbed.
    In a prosecution for child abandonment, the jury are the exclusive judges of the credibility of the witnesses, of the weight of the testimony, and of the facts proven, and it is not for the appellate court to say whether it would reach the same conclusion as the jury on the facts; but unless the :record is devoid of testimony supporting the verdict the appellate court will not interfere.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Wilbarger County Court; E. L. McHugh, Judge.
    Joe Pybus was convicted of child desertion, and he appeals.
    Affirmed.
    Cook, Cook & Nicholson, of Vernon, for appellant.
    J. A. Storey, Co. Atty., and Berry, Stokes & Killough, all of Vernon, and it. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMOR.E, J.

Appellant was convicted ■in the county court of Wilbarger county of child desertion, and his punishment fixed at five months in the county jail.

By his first bill of exceptions, appellant presents his complaint of the action of the trial court in permitting his wife to tes-’ tify that she was in delicate health at the time appellant left her, and her further statement that her second child was born some two months after appellant left. In our opinion the state was entitled to prove all of the circumstances and surroundings of appellant’s wife and baby son, the desertion of the latter being the question involved. Such surroundings and circumstances may have weighty bearing upon the proposition as to whether such child was left in destitute and necessitous circumstances, and we can conceive of a case in which it might have legitimate bearing on the question as to whether the abandonment was willful. A letter from appellant to his wife about the time of his leaving was introduced, in which he stated that he was going to the Davis .Mountains find: did not' know whether he would ’ever come back to them any more, and directing ■his wife to let appellant’s father and’mother have théir little soil, -Luther Joe,’, as they could take care of him better than the wife could, and asserting that if she did not let them have him that appellant was going to keep him half the time any way. If appellant’s wife had been in a condition to work, ;and had been working and earning money out of which the child might be supported and cared for,'there would seem little doubt of the admissibility of testimony of such' fact as tending to rebut the proposition that she .wanted to-keep the child and was unwilling to contribute fo his support, or take care of him.

Appellant presented a special instruction asking that he be acquitted upon the ground that the evidence- was • insufficient to support the proposition that he had willfully -and without justification deserted, neglected, and refused to provide for the support and maintenance of said child. This complaint brings into review the sufficiency, of the testimony, which was also complained of in appellant’s motion for new trial,

There is no suggestion in this record of appellant’s physical inability to do any kind of manual or dther labor. ,He left his wife and child about December 1, 1921, leaving them at his father’s house. Appellant’s wife testified that three or four days after her husband went away that his brother carried her and her little boy to 'her mother’s home, telling her that they could not keep her, and also telling her that her husband was not coming back. This was about two weeks before.she received the letter from appellant above mentioned. A week or two after that appellant’s mother sent to her some dresses for’the little boy'and ohe for herself. She further -testified that from "the time he went away, as above mentioned, down to the time of the trial she had received no money or contribution from appellant to the support of their little son, in any way, and that h@r stepfather and brother had been taking care of them. The case was tried the latter part of April, 1922, and it thus appears th.at for about five months appellant had not supported or cared for his infant child. The child, was approximately two years of age at the time and naturally wholly dependent upon those who were obligated by ties of nature and under the law to support, care for and maintain it. Appellant testified that he did not send any money to his wife for the support of the child because he did not know whether it .would be used for that purpose or not.

The solution of conflicting issues of fact is for the jury who have before them the witnesses and can observe them and their manner of testifying and more accurately judge of the truth and weight of their testimony. Under the facts given in testimony by state witnesses we believe appellant’s guilt under the law to be established. We are not able to conclude that he brings himself within that class of cases which exhibit excuse or justification for failure to support his child, or which remove from it the attribute of willfulness on his part in such action. It would seem incredible that a healthy, strong young man in five months could not earn enough money to contribute, in part at least, to the care and maintenance of his child.

By his bill of exceptions No. 3, appellant complains of the charge of the court. That part of the charge at which the exception is directed is as follows:

“Now, bearing in mind the foregoing instructions, if you believe from the evidence that the defendant did, on or about the 1st day of December, A. D. 1921, willfully and without justification, desert, neglect, or refuse to provide for the support and maintenance of his child, to wit, Luther Joe Pybus, the said Luther Joe Pybus being under the age of 16 years and being in destitute and necessitous circumstances, in violation of the provisions of law herein given you, you will find the defendant guilty.”

The complaint is of that portion of the charge which is as follows: “Being in destitute and necessitous circumstances.” In construing any phrase or paragraph or portion of the court’s charge, we must look to the charge in its entirety, and we do not think the part of the charge complained of to be of such character as to be open to the objection that it is on the weight of the evidence, or is a statement by the trial court of a fact. In this connection we call attention to the fact that a. special charge asked by appellant was given, which is as follows:

“Gentlemen of the jury: You are instructed that before you can find the defendant guilty you must find and believe from the evidence beyond a reasonable doubt that the defendant, on or about December 1, 1921, willfully and without justification deserted his child, Luther Joe Pybus, and neglected and refused to support and maintain him, and that he, the said Luther Joe Pybus, was then in destitute and necessitous circumstances, and unless you so find and believe you will acquit the defendant and so say by your verdict.”

Taking the charge as a whole, we do not believe it susceptible of any construction of injury to appellant, or that it presented an erroneous instruction.

Appellant complains of the refusal of a charge asked by him to the effect that if he had provided a place with his father and mother where his wife and child could stay and be provided for he should be found not guilty. If we understand the record properly, this charge was correctly refused because not called for by the evidence. There is some testimony suggesting that appellant’s father and mother were willing to take the child' for a part of the timé, and that his sister was also willihg to take it for a part of the time; but there is no suggestion that appellant in any way provided any funds or means by which the child should be thus supported or maintained, nor is there any suggestion of the truth of the theory contained in said special charge, viz., that he had provided a place where his wife and child could stay and be provided for. The trial court gives or refuses instructions as asked, and we have no doubt of the correctness of his refusal of the special charge couched in the language same appeared.

As a general rule, this court scrutinizes cases of this character with much care and caution, being fully aware of the ease with which the average juror may be affected by his own feelings of desire to see helpless women and children protected and cared for. We decline to affirm cases where the record does not satisfy our minds that the evidence before us supports each phase of the statute in question; but being of the opinion that in the case now under consideration there appears a total absence of any apparent desire oh the part of the wife to wreak vengeance upon appellant, or to punish him for any apparent inability to meet the duties devolving upon him, or showing any partiality on the part of the jury toward the woman or the child in the case, and believing that the evidence supports the conviction and -that appellant has had a fair trial, an affirmance will be ordered.

On Motion for Rehearing.

Appellant insists that we erred in holding admissible the testimony as to the condition of the health of his wife at the time he left her, and at the time of the alleged desertion of the minor child, upon which this prosecution was based, and the further fact that appellant’s wife gave birth to another child about two months after he went away. The offense, if any, committed by appellant is based upon the elements of willfulness and lack of justification. We cannot escape the proposition that if one be charged with desertion of his minor child, and could establish the fact upon his trial that he left the child’s mother in good health, holding a good position, capable of earning a good- salary, these things would be worthy of consideration in determining the willfulness and lack of justification on his part. On the other hand, we find ourselves unable to get away from the proposition that one who leaves his minor child at a time when its mother is incapable of working and making a living for. it and herself, or in any way contributing to her part of the burden of its support, this is entitled to consideration at the hands of the court or jury called upon to determine whether his action is willful and without justification.

The only other question urged is that we erred in holding the evidence sufficient to support the proposition that he willfully and without justification abandoned his min- or child. We have again reviewed the facts which were submitted to the jury, and passed upon by them. Our own province' in matters of fact is to ascertain if there be evidence sufficient to support the conclusion reached by the jury. They are made by law the exclusive judges of the credibility of the witnesses, of the-weight of the testimony, and of the facts proven. Whether we would reach thej same conclusion on the facts as that arrived at by the jury is in no wise the question. Unless the record before us is so devoid, of testimony supporting the conclusion reached, the rule of this court is .to decline to interfere. We are not led to believe the verdict of the jury in this case to be without support in the testimony, or to reflect prejudice or passion on 'the part of said jury.

The motion for rehearing will be overruled. 
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