
    FLOWERS v. STATE.
    (No. 11406.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    I.Husband and wife <&wkey;313 — Evidence held insufficient to support conviction for willful desertion of wife in destitute circumstances (Penal Code 1925, aft. 602).
    Evidence held insufficient to sustain conviction for willful desertion of wife in destitute circumstances, under Penal Code 1926, art. 602, where defendant made home at place where they lived when wife departed of her own accord, and was willing for her to live in his home.
    2. Husband and wife <&wkey;3(l) — Law contemplates that husband’s home is also wife’s.
    Law contemplates that home of husband shall be that of wife.
    3. Husband and wife &wkey;>304 — Wife is not “in destitute circumstances,” while husband maintains home and.is able and willing to supply necessities (Penal Code 1925, art. 602). •
    Wife is not “in destitute circumstances,” within Penal Code 1925, art. 602, relative to husband’s willful desertion of wife in destitute circumstances, while husband maintains home and is able and willing to supply her with necessities of life.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Destitute.]
    4. Husband and wife <§=>304 — Where wife voluntarily abandons husband’s home, absence does not render him guilty of wife desertion unless separation is due to his willful fault (Penal Code 1925, art. 602).
    Where wife voluntarily abandons home maintained by husband and abides at home of another, her absence does not render him guilty of violating Penal Code 1925, art. 602, prohibiting willful desertion of wife in destitute circumstances unless separation was due to his willful fault.
    Appeal from Taylor County Court; Tom K. Eplen, Judge.
    R. B. Flowers was convicted of wife desertion, and he appeals.
    Reversed and remanded.
    Cox & Hayden, of Abilene, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is wife desertion; punishment fixed at a fine of $25.

The prosecution is under article 602, Penal Code 1925, in. which it is declared that a husband who shall willfully desert or refuse to support his wife who may be in destitute circumstances shall be guilty of a misdemeanor.

The following facts are from' the record: R. B. Flowers and Jessie Flowers were married in January, 1927, and lived together in a home, in the city of Abilene, provided by the appellant, until the 28th day of May, 1927. Mrs. Flowers was sick at that time, and her sister, Mrs. Albritton, requested that the Flowers come to her home, that they did so, and the appellant remained until about the 14th of June, when he returned to his own home situated in the city of Abilene, where he has since remained. Mrs. Flowers remained with her sister. Mrs. Albritton and her husband removed to another town. Mrs. Flowers accompanied them and remained as a member of their household until the time of the trial. She went to her husband’s home and got her clothes. But with that exception she has remained absent therefrom. Mrs. Flowers had been treated by a physician, whose services were, according to th.e appellant, either paid for or offered to be paid by him. He also expressed his willingness to pay the Albrittons any sum of money that he might be indebted to them. Mr. Albritton, as well as his wife, disclaimed any claim against the appellant for any sum' of money and said that Mrs. Flowers was welcome in their home and had received all the comforts of life. The sister of the appellant, a trained nurse residing at Fort Worth, ascertaining that Mrs. Flowers was not well and that they were in need of money, sent $50 and wrote, offering to take Mrs. Flowers to Fort Worth and care for her, or to come to Abilene and give her attention. Mrs. Flowers replied that her husband was good to her and that she did not want to leave him. The appellant’s sister then came to Abilene and found Mrs. Flowers able to be about, but only nervous or hysterical. The physician’s testimony was to the point that he had administered no medicine to Mrs. Flowers, but found her nervous. All the testimony was to the effect that she was not confined to her bed. She claimed that the appellant worked part of the time, and when engaged received $5 per day. From the testimony of Albritton, it appears that the appellant was not in good financial circumstances; that he had loaned him $175 which the appellant said he had used in paying the expenses of his wife’s illness, and gave some details which were not controverted. Mrs. Flowers testified that she had ample wearing apparel and a life insurance policy amounting to $1,000, that it was a paid-up policy, though its value was not further shown. The appellant continued to maintain his home at the place where they lived when his wife departed, and from the evidence it appears that his rent was paid, the house furnished, and that he lived there; that he had not been called upon for anything which he did not furnish; that he was willing for her to come and live in his home. She claimed that he had never asked her to do so. In our judgment, the evidence falls short to support a conviction for the willful desertion of a wife in destitute circumstances. Pertinent precedents are O’Brien v. State, 90 Tex. Cr. R. 276, 234 S. W. 668; Reid v. State, 89 Tex. Cr. R. 65, 229 S. W. 324; Mercardo v. State, 86 Tex. Cr. R. 559, 218 S. W. 493, 8 A. L. R. 1312; Elms v. State, 99 Tex. Cr. R. 500, 270 S. W. 856; Prock v. State, 92 Tex. Cr. R. 494, 244 S. W. 601; Patton v. State, 103 Tex. Cr. R. 335, 280 S. W. 584. The proof fails to show a willful desertion or willful neglect of his wife. Upon the undisputed evidence, if the prosecutrix’s condition was such as to require medical attention or nursing, the appellant, through his sister, has offered to supply both. Admittedly, she left her home not at his bidding, but of her own accord, and has voluntarily remained absent therefrom. The appellant’s ability to do more than he has done is not shown.

.[2-4] He maintained a home, and the law contemplates that the home of the husband shall be that of the wife. She was not in destitute circumstances while her husband maintains a home and is able and willing to supply her with the necessities of life. If she voluntarily abandons it and abides at the home of another, her absence does not render him a criminal unless there is proof of facts sufficient to warrant a finding that the separation is due to his willful fault.

Deeming the evidence insufficient, the judgment is reversed and the cause remanded. 
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