
    BARROW v. STATE.
    (No. 5931.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1920.)
    i. Criminal law <®^>857(3)— Jurors’ improper discussion of defendant’s failure to testify requires reversal.
    The fact that the foreman stated that, if accused had any satisfactory defense, he ought to have gone on the stand, and that other jurors commented on his failure to testify, shows such'misconduct of the jury as necessitates the reversal of the case.
    ?. Husband and wife <@=o302 — To convict for wife desertion, evidence must show that wife was destitute.
    In order to make the desertion of the wife an offense under the statute, the prosecution must show that the wife was left in destitute and necessitous circumstances.
    Appeal from Chambers County Court; Joe If. Willson, Judge.
    Forrest Barrow was convicted of wife desertion, and he appeals.
    Reversed and remanded.
    Guynes & Colgin, of Houston, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Chambers county of the offense of wife desertion, and his punishment fixed at a fine of $100.

The case must be reversed, because of the misconduct of the jury, in that, after they had retired to consider of their verdict, they discussed appellant’s failure to testify. All the members of the jury gave evidence upon hearing of the motion for a new trial, stating that the fact of the failure of appellant to testify was discussed. Certain members of said jury stated that they heard Mr. Crone, the foreman, speak of such failure. One of the jurors said that Mr. Crone was the principal one, but that he (witness) mentioned it also. The foreman swore that, just aftter the jury were locked in their room, Mr. Thornton, one of the jurors, casually remarked about the defendant not going on .the stand and giving his side of the case, and that he (Crone) replied that, if he had any satisfactory defense, he ought to have gone on the stand. This was before any verdict. We think this constitutes such misconduct as necessitates a reversal of the case. Clark v. State, 76 Tex. Cr. R. 645, 177 S. W. 84; Portwood v. State, 71 Tex. Cr. R. 447, 160 S. W. 345; Huddleston v. State, 70 Tex. Cr. R. 260, 156 S. W. 1168; Richards v. State, 59 Tex. Cr. R. 207, 127 S. W. 823; Tate v. State, 38 Tex. Cr. R. 265, 42 S. W. 595; Fine v. State, 45 Tex. Cr. R. 292.

We seriously doubt the sufficiency of the evidence in this case. Appellant married a widow, who had a home, consisting of two tracts of land, one of which was shown to be worth $1,000, and for which she had refused $800. She also had two or more horses, of the value of something over $200, a cow and yearling, worth in the neighborhood of $100, and some chickens and household and kitchen furniture.

The wife had been a widow for some three or four years, and had gotten along with the assistance of relatives. It was shown that appellant had nothing. He lived with the woman but one day and night, and then left. The wife testified that she had written him but once since he left, before filing the complaint in this case, and that she did not in said letter apprise him of her needy condition. There would seem to be no question of the reprehensible conduct of one who marries a woman, and lives with her bne day and night, and then leaves her without any apparent reason; but, to make such leaving penal under this statute, the wife must be left in destitute ¿nd necessitous circumstances. We doubt if one whose property is worth in the market approximately $1,500, and who seems to have made no effort to sell after the alleged desertion, could be held, under the terms of the statute, to be in that condition of destitution and necessity which measures up to the requirements of the law.

The judgment will be reversed and remanded. 
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