
    TAYLOR v. STATE.
    (No. 6945.)
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1923.)
    Husband and wife &wkey;>3!4- — In prosecution for desertion, failure to give instruction embodying defendant’s theory held error.
    In a prosecution under Vernon’s Ann. Pen. Code 1916, art. 640a, for deserting his wife and minor children, a refusal to give an instruction requested by defendant embodying his theory of defense held error.
    Appeal from Fayette County Court; John P. Ehlinger, Judge.
    Tom Taylor was convicted of deserting Ms wife and minor children, and he appeals.
    Reversed.
    John T. Duncan, of La Grange, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is under article 640a of our Penal Code. Punishment was assessed at one year’s imprisonment in the county jail.

The information contains two counts, the first charging desertion of the wife, the second. desertion of the minor children. Both were submitted to the jury. The evidence is confusing and unsatisfactory, attributable, no doubt, to the lack of intelligence of the parties directly interested, as well as most of the other witnesses. After appellant and his wife had been married about 15 months she left home, going, as she claimed, to her parents on account of the illness of a brother. She remainedi away some 11 months. She claims that a few days after reaching her parents appellant notified her he did not intend to live with her longer. His contention is that she went away without fault on his part, and with the purpose of abandoning him. She filed complaint charging him with desertion, but they went back together, and the county attorney agreed to, and did, dismiss the case. The wife avers that appellant again deserted her, and she filed a second prosecution. It is his contention that he rented a house, furnished it with supplies, and his wife refused to live -with him because she did not like the place or locality selected by him. The contention of both parlies is supported by evidence of other witnesses. The defensive issue was fairly raised by the facts.

The court’s charge presented only the state’s theory, entirely omitting any affirmative defensive issue. Several special charges designed to supply this omission were requested, and proper exceptions reserved to their refusal. One of the refused charges is as follows:

“Gentlemen of the Jury: I charge you that the defendant stands charged with having willfully and without justification, of having deserted, neglected, and refused to provide for his wife and children, they being in destitute conditions. Now, if from the evidence you believe the defendant’s wife without just cause abandoned the defendant on or about the month of March, 1920, and remained away from him for about 11 months, and if you believe from the evidence that in 1921 she returned'to Fayette county, and if you believe from the evidence that after she returned that she and the defendant lived together, and if you believe that defendant thereafter provided a home and provisions for his wife and children, and that the wife refused to five in it or stay in said home, and persisted in living elsewhere, and if you believe from the evidence that the defendant is now ready and willing to provide a home and support for his wife or children or both, then I charge you that the defendant would not be guilty of said charge and you should find him not guilty, and so say by your verdict.”

As we have analyzed the facts, this charge pertinently presented appellant’s defense, and we think should have been given, and its refusal was such error as cálls for a reversal; and it is so ordered.  