
    BOBO v. STATE.
    (No. 6511.)
    (Court of Criminal Appeals of Texas.
    Dec. 7, 1921.)
    (. Criminal law ©=>949(2)—Swearing to motion for new trial for newly discovered evidence necessary.
    A motion for new trial, when on the ground of newly discovered evidence, is insufficient, if not sworn to by accused or his counsel, under Vernon’s Ann. Code Or. Proc. 1916, art. 840.
    2. Husband and wife ©=>$02—Conviction for neglecting to provide authorized', though there be no desertion.
    Under Vernon’s Ann. Pen. Code 1916, art. 0>40a, read in connection with article 640c, it is not only an offense for a husband to willfully or without justification desert his wife, who is in destitute or necessitous circumstances, but likewise an offense to so neglect or refuse to provide for her support and maintenance, when she is in snch circumstances.
    3. Husband and wife ©=>305—For offense of failure to support, husband must be able to support.
    Eor guilt, under Vernon’s Ann. Pen. Code 1916, art. 640a, of failure to support a wife, the husband must be able to support and provide, and inability from sickness or poverty is an excuse.
    Appeal from Wichita County Court; Guy Rpgers, Judge.
    J. O. Bobo was convicted of wife desertion, and appeals. Reversed and remanded.
    Beyser, Hicks. Wilson & Williams, and H. D. Bishop, all of Wichita Palls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for wife desertion. Penalty, ?50 fine and 30 days in jail.

New trial was applied for on the ground, among others, of newly discovered evidence. The affidavit of the wife is attached, setting out what is claimed to be the evidence coming to appellant’s knowledge since the trial; but the motion for new trial, as it appears in the record, is not sworn to-either by counsel or accused. A motion for new trial, not so sworn to, when the ground stated is newly discovered evidence, is entirely insufficient. Por authorities, see notes 7 and 9, under article 840, Vernon’s O. C. P.

The information 'charged both -willful desertion and failure to provide for the support and maintenance of the wife, who was alleged to have been in necessitous and destitute circumstances. Both were submitted to the jury, and a general verdict returned. The case was tried by counsel for accused on the theory that desertion was a necessary element of the offense, without which no criminal liability attached, even though neglect and refusal to provide for support and maintenance was shown. Many special charges were requested, embracing this theory, and exceptions properly reserved, when refused. This question was decided adversely to such contention in No. 6404, O’Brien v. State, 234 S. W. 668, opinion delivered November 16, 1921, not yet [officially] reported in which we held that a husband would be guilty under article 640a, Vernon’s P. C., who willfully or without justification deserted his wife who was in destitute or necessitous circumstances, and one would likewise be guilty who willfully or without justification neglected or refused to provide for her support and maintenance when she was in-destitute or necessitous circumstances. Article 640c, read in connection with article 640a, confirms us in the correctness of that conclusion. No error was committed by the court ii). declining to give the special charges.

A special charge refused was substantially to the effect that, if the failure to support was because of illness or poverty on accused’s part, he should be acquitted. This charge should have been given. To our minds the evidence raised the issue. If appellant was physically unable to work, and provide for his wife, there would be an absence of willfulness and the presence of justification, although bis phj’sical ailment may have been brought about by some other lapse of conjugal duty. likewise, if poverty overtakes one, it is a misfortune, but not a crime. In O’Brien’s Case, supra, it is said:

“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.”

By the same reasoning, then, it would seem plain, if he is not able to support and provide, there would be no offense. Irving v. State, 73 Tex. Cr. R. 615, 166 S. W. 1166; Reid v. State, 229 S. W. 324.

Por the error pointed out, the judgment of the trial court is reversed, and the cause remanded. 
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