
    KIRKENDALL v. STATE.
    (No. 3782.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.)
    1. HUSBAND AND WIFE <&wkey;312 — ABANDONMENT AfteR Seduction and Marriage — Indictment — Sufficienct.
    An indictment for wife abandonment after seduction and marriage, which followed Pen. Code 1911, art. 1450, in alleging the seduction, was not bad for failure to follow the seduction statute also, since it was not essential to follow the latter in an indictment drawn under the former.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. <&wkey;> 312.)
    2. Husband and Wife &wkey;?3l2 — Abandonment After Seduction and Marriage-Indictment — Sufficiency.
    It was not essential to allege in such indictment the day “on or about” which a complaint and affidavit was filed against accused for the seduction, where, after alleging the seduction under promise to marry, the indictment alleged that “afterwards” such complaint was filed.
    Hid. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. <&wkey;> 312.)
    3. Husband and Wife <&wkey;312 — Abandonment After Seduction and Marriage-Complaint — Requisite Allegation.
    While it was not necessary for the indictment to allege that the court in which the complaint for seduction was filed had jurisdiction, it was necessary to allege the particular court wherein such complaint was filed, whereupon the question of its jurisdiction would be tlie subject of judicial knowledge by the court trying accused under the abandonment indictment.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. &wkey;312.)
    4. Husband and Wife <&wkey;312 — Abandonment After Seduction and Marriage-Indictment — Sufficiency.
    The allegation in the indictment that the complaint and affidavit against accused for seduction were filed “In J. P. Court No. in Navarro County” was insufficient for failure to specify the court.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. «&wkey; 312.)
    5. Husband and Wife <&wkey;312 — Abandonment After Seduction and Marriage — Indictment — Fatal Defect.
    The failure of the indictment to allege the county wherein accused abandoned his wife was fatal, since the court of such county would alone have jurisdiction to try the offense.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. <3&wkey;312.)
    6. Husband and Wife <&wkey;312 — Abandonment After Seduction and Marriage— Indictment.
    The failure of the indictment to allege the day, month, and year “on or about” which accused abandoned his wife was a fatal defect, since such allegation is required by the statute prescribing the requisites of an indictment and information.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 664-670; Dec. Dig. <&wkey;> 312.)
    7. Indictment and Information &wkey;>159 — Substantial Allegation — Amendment.
    Such allegation of the date of abandonment being a matter of substance, the indictment could not be amended in that respect.
    LEd. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec. Dig. &wkey;3l59.)
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Burt Kirkendall was convicted of wife abandonment after seduction and marriage, and he appeals.
    Reversed, and cause dismissed.
    Jack & Jack, of Corsicana, for appellant. C. C. McDonald, Asst. Atty. Gen., for tbe State.
   PRENDERGAST, P. J.

Appellant was convicted for wife abandonment after seduction and marriage. The indictment, after the necessary formal allegation, is:

“That Burt Kirkendall, on or about the 7th day of April, one thousand nine hundred and fourteen, and anterior to the presentment of this indictment, in the county of Navarro and state of Texas, did then and there unlawfully by promise of marriage seduce May Hoffimau, an unmarried female under the age of twenty-five years, and did then and there have carnal knowledge of her, the said May Hoffman, and was afterward charged by complaint and upon affidavit with the offense of seduction of her, the said May Hoffman, in J. P. Court No. in Navarro County; that after said complaint had been made and said affidavit filed against him, and before any indictment had been found against him, the said Burt Kirkendall, and before announcement of ready for trial, he, the said Burt Kirkendall, married her,_ the said May Hoffman; and thereafter., and within two years after said marriage, without the fault of his said wife, such fault amounting to acts committed by her after said marriage as would entitle Mm to a divorce under tlie laws of tMs state, did abandon and refuse to live with Ms said wife, and did become so cruel to her as to compel her to leave Mm, the said Burt Kirken-dall. * * *”

By motion to quash, and in arrest of judgment, appellant attacked the indictment on several grounds, some of which, we think, are good. The first part of the indictment charging the seduction follows the statute (P. O. art. 1450), and we think is sufficient. It was not essential to follow the seduction statute. While it would be ¡better for .the indictment to allege the date “on or about” when complaint and affidavit for the alleged seduction was made and filed against him, yet that is not essential, as the indictment herein charged “afterwards,” which means after April 7, 1914. It would not be necessary for the indictment to allege that the court in which the complaint was filed had jurisdiction, but it would be necessary to allege the particular court wherein the complaint charging seduction was filed. The court below and this, too, would have judicial knowledge whether or not the court alleged had jurisdiction.

The indictment herein, in alleging the court, says: “In J. P. Court No. in Navarro County.” That allegation is insufficient. No doubt it was intended to charge that the affidavit was filed in the Justice Court, or Justice of the Peace Court, Precinct No. in Navarro County, Texas. It would be essential that the court should be thus described. “J. P. Court” is not sufficient. The number of the precinct was not essential. Baskins v. State, 171 S. W. 723.

The further allegation that, after said complaint had been filed against him and before any indictment found, etc., he married May Hoffman, might be sufficient; but it is better to allege the particular date, on or about, df the marriage. The latter part of the indictment alleges no date and no county wherein appellant abandoned May Hoffman. Such an allegation is absolutely essential. While there are other necessary requisites in this character of offense, as the statute prescribes, the gist is the abandonment. The seduction might occur in one county, the marriage in another, and the abandonment in still another. The court of the county wherein the abandonment occurred is the only court that would have jurisdiction to try such offense.

“Our statute, in prescribing the requisites of an indictment and an information, requires that it shall state the date on which the defendant has committed an offense, and it has been- uniformly held by this court, and the Supreme Court when it had criminal jurisdiction, that the indictment or information and complaint must give the dag, month, and year of the commission of the offense (or, ‘on or about’ a certain date). Barnes v. State, 42 Tex. Cr. R. 297, 59 S. W. 882, 96 Am. St. Rep. 801; Vallegas v. State, 66 S. W. 769; Thurman v. State, 45 Tex. Cr. R. 569, 78 S. W. 937; State v. Eubanks, 41 Tex. 291; State v. Slack, 30 Tex. 355 ; State v. Johnson, 32 Tex. 96. It has likewise uniformly been held by this and the Supreme Court that the allegation of the date when an offense was committed is a matter of substance, and that it cannot be amended. Drummond v. State, 4 Tex. App. 150; Little v. State (App.) 19 S. W. 332; Hawthorne v. State, 6 Tex. App. 562; Goddard v. State, 14 Tex. App. 566; Huff v. State, 23 Tex. App. 293, 4 S. W. 890; Whitley v. State, 56 S. W. 69; Sanders v. State, 26 Tex. 119.” Mealer v. State, 145 S. W. 355.

The allegation of abandonment herein does not aver when nor where it occurred. Nor is it connected by “then and there” with any previous allegation of date or county.

In the particulars mentioned the indictment in this case is fatally defective, and the judgment on that account must be reversed, and the cause dismissed. 
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