
    SPICER v. STATE.
    (No. 3667.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Parent and Child &wkey;>17 — Offenses — Failure to Support Child.
    Under Acts 33d Leg. c. 101, §. 1, making it an offense for a father to neglect or refuse to provide for its maintenance if under 16 years of age, it was immaterial that the child was' born after he had deserted his wife.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 176-181; Dec. Dig. &wkey;17.j
    2. Criminal Law <&wkey;577 — Time for Trial-Waiver.
    Defendant, entitled to two whole days to prepare for trial, who announced ready for trial, who had a verdict of not guilty, and who, when an information was at once refiled, stated that he would be ready for trial as soon as he could prepare a plea of former acquittal and a motion to postpone, and on inquiry by the court said he did not care whether they were ruled on then or not, and who announced ready, thereby waived the time allowed for preparation for trial.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1305, 1506; Dec. Dig. <&wkey; 577.]
    3. Cbiminal Law >3=3170—FoemeR Acquittal.
    Where an information in a former complaint charged an impossible date, a conviction could not be had under it, so that an acquittal thereunder was not available as a plea of former acquittal.
    [Ed. Note—For other cases, see Criminal Law, Cent. Dig. §§ 312—321; Dec. Dig. <@=>170.J
    Appeal from Jones County Court; J. F. Lindsey, Judge.
    C. H. Spicer was convicted of deserting his wife and child, and he appeals.
    Affirmed.
    Joe C. Handel, of Hamlin, for appellant; C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of deserting his wife and child. His first contention is that the indictment is insufficient to charge an offense. It is in language frequently approved by this court, and we do not deem it necessary to discuss it further.

Another contention is that, as the baby was born after he deserted his wife, if he did do so, he cannot 'be convicted of the offense of deserting his baby. Section 1, c. 101, Acts 33d Leg., not only makes it an offense to desert the child, hut also makes it an offense to neglect or refuse to provide for the support and maintenance of the child, if under 16 years of age. The information is brought under this provision of the Code.

Appellant contends that he was placed on trial in less than two days after the complaint and information were filed. Under our procedure he was entitled to two whole days to prepare for trial, unless he voluntarily waived the time. The record discloses that an information had been filed against him, charging him with the commission of the offense on November 15# 1915, an impossible date, as that time has not yet arrived. When the case was called for trial he announced ready for trial. When the county attorney discovered his mistake, he desired to dismiss the case. Appellant insisted on a verdict of not guilty on that complaint, as he had announced in the case. The court entered a verdict of not guilty in accordance with appellant’s request. The county attorney at once stated he would refile, and did so, charging the offense as of date March 20, 1915. When appellant was rearrested and was asked if he desired to make bond, appellant’s counsel stated it was unnecessary, as he would be ready for trial as soon as he could prepare a plea of former acquittal. Time was given him, and when the case was called for trial, he filed a plea of former ae-quittal, and also filed a motion with the clerk: “Now comes the defendant and moves the court to postpone this case until Saturday, May 1st.” When these two pleas were filed, the court asked counsel for appellant if he desired to present them and have them ruled on at that time, when counsel replied, “I do not care whether you rule on them just now or not” and did not call the court’s attention to the motion. Without further action he announced ready and proceeded with the trial. If appellant desired the two days to prepare for trial, he should have called the court’s attention to his motion, had it acted on, and if the court overruled the motion and forced him to trial, took a bill of exceptions to the action of the court in so doing, and if he had taken that action, it would require us to reverse the case. But instead of doing this, he informs the county attorney he will be ready for trial as soon as his plea of former acquittal is prepared. When he gets this prepared, he files with it his motion to postpone, but does not call the court’s attention to it, nor have it ruled on then. 1-Ie announces ready for trial, and proceeds with the trial and not until after the verdict is rendered does he complain. His acts and conduct amount to a waiver in law.

The only other contention is that the court erred in not sustaining his plea of former acquittal. The information in the first complaint charging an impossible date, a conviction could not have been had under it. or, if secured, would have been a nullity. The information and complaint being void, tn£ court did not err in overruling the plea.

The judgment is affirmed. 
      other oases see same topic and KEY-NUMB12R in all Key-Numbered Digests and Indexes
     