
    WOODARD v. STATE.
    (No. 5680.)
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1920.)
    1. Parent and child <s&wkey;17(5) — Information CHARGING- DESERTION MUST ALLEGE CHILDREN TO BE IN DESTITUTE AND NECESSITOUS CIRCUMSTANCES.
    Information, charging desertion of infant children in violation of Vernon’s Ann. Pen. Code 1916, § 640a, without alleging the children to be in destitute and necessitous circumstances, held fatally defective.
    2. Criminal law &wkey;3l032(5) — Failure oe information TO CONTAIN NECESSARY ALLEGATION AVAILABLE ON APPEAL, THOUGH NOT PRESENTED BELOW UNTIL AFTER TRIAL.
    Failure of information, charging defendant with desertion of minor children, to allege the children to be in destitute and necessitous circumstances, as required by Vernon’s Ann. Pen. Code 1916, art. 640a, is available to defendant on appeal, notwithstanding that question was raised for the first time by a motion in arrest of judgment, filed more than two days after the conclusion of the trial in the lower court; such information being fatally defective.
    3. Criminal law &wkey;>1032(l) — Information OR INDICTMENT DEFECTIVE IN MATTER OF SUBSTANCE SUBJECT TO ATTACK FOR FIRST THUS ON APPEAL.
    If an indictment or information is defective in some matter of substance, it will not support a judgment, and an attack may be made for tbe first time in appellate court.
    4. Criminal law <&wkey;1144(18) — Presumption THAT DEFENDANT HAD GOOD EXCUSE FOR FAILING TO MOVE IN ARREST UNTIL TWO DAYS AFTER TRIAL.
    Where defendant did not file motion in arrest of judgment upon ground that information was fatally defective until two days after conclusion of trial, court on appeal, in absence of showing to thfe contrary, will assume that the trial court, in considering and overruling motion, concluded that there was sufficient excuse for failure to file motion sooner.
    Appeal from Navarro County Court; H. F„ Traylor) Judge.
    Jim Woodard was convicted of deserting" bis two minor children and be appeals.
    Reversed and order dismissed.
    J. S. Simkins and Callicutt & Johnson, all’ of Corsicana, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for tbe State.
   LATTIMORE, J.

Appellant was convicted, in tbe county court of Navarro county, of tbe desertion of bi's two minor children, and bis punishment fixed at a fine of $25.

, Tbe information contains tw.o counts — one charging the desertion of bis wife, she being in destitute and necessitous circumstances; and the other charging tbe desertion of bis two minor children, there being no allegation in said count that they were'in destitute and necessitous circumstances.

Article 640a of Vernon’s Penal Code, which is our statute defining tbe desertion of wife or children, specifically applies tbe element of destitution and necessitous circumstances to tbe desertion of children as well as to tbe desertion of tbe wife. We have uniformly, held tbis allegation as well as proof of tbe same, to be necessary. On tbis account the state’s pleading is fatally defective. It is contended by tbe state that, as tbe question was, raised by appellant for tbe first time by a motion in arrest of judgment, filed more than two days after tbe conclusion of tbe trial, in the lower court, said question cannot now be raised and relied upon. If an indictment or information be defective in some matter of substance, it would not support a judgment, and an attack may be made-on tbe same for tbe first time in this court. Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746.

We further observe that when said motion in arrest of judgment was filed, no counter, motion to strike tbe same from tbe record was made by tbe state, but said motion in arrest of judgment was considered and overruled generally by tbe trial court. In tbe absence of some showing to the contrary, we would presume that tbe trial court concluded that there was' some sufficient excuse for failure to file said motion sooner.

We are of opinion that the second, count in said information was fatally defective, and that the matter can be properly raised here.

The judgment of thé lower court is reversed, and the cause ordered dismissed. 
      (gsaKor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     