
    SMITH v. STATE.
    (No. 8187.)
    (Court of Criminal Appeals of Texas.
    June 18, 1924.)
    1. Husband and wife <$=3304 — When one is not guilty of willful desertion or failure to support stated.
    One who is unable to work or who,, being able to work, is unable to find work, and for either of such reasons fails to contribute to the support of his wife, is not guilty of willful desertion or failure to support her.
    2. Husband and wife <&wkey;305 — Failure to give requested instruction on issue of wife desertion held reversible error.
    In prosecution for wife desertion, refusal to give defendant’s requested instruction that,' if jury believed accused’s wife by reason of her conduct and treatment of Mm caused him to abandon her, and that if such treatment and conduct, if any, was the direct and proximate cause of his leaving her, then he should be found not guilty, held reversible error.
    3. Husband and wife <$=3305 — Rule stated as to delinquencies of wife as defense to prosecution for desertion.
    The law imposes mutual obligations on each spouse, as much upon one to perform his or her part and to meet the obligations imposed by the marital relation as upon the other, and the wife may not fail nor refuse to perform her part if capable anjl then seek to have the husband punished for failing to do what may be deemed his part.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    Walter E. Smith was convicted of wife desertion, and he appeals.
    Reversed and remanded.
    Douglas, Carter & Childers, of San Antonio, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State. <
   LATTIMORE, J.'

Appellant was convicted in tlie county court of Bexar county of wife desertion, and Lis punishment fixed at 90 days in the county jail.

Appellant married a woman several years older than himself and shortly thereafter went away to the World War. He testified that he was gassed while in action in said war, and that since his return home had been practically incapable of earning a living. He was charged by information on or about the 1st day of August, 1922, that he had without justification, abandoned, neglected, and failed to provide for the support and maintenance of said wife and that he had left her in destitute and necessitous circumstances. It was shown in the- testimony that the parties married in October, 1917, and that they had not had a very happy married life. On the trial both appellant and his wife indulged in testimony mutually criminative. It appears that appellant had been in the government hospital at Kerrville for quite a while, and that he had been staying on a ranch for his health, receiving a small amount of compensation for' what work he could do. He testified that between August, 1922, and the time'of the trial he had earned about $65, and that the reason he had not earned more was because he could not work; that he was not able to take up hard work. Several witnesses testified to the poor physical condition of appellant, and to the fact that he seemed unable tó do hard work. Most of the record seems devoted to a trial of appellant and of his wife for their conduct toward each othey during the time they lived together, appellant admitting that on several occasions he had struck her and asserting as justification that she had abused and villified him and his mother and sisters. Nothing is shown as to the physical condition of prosecuting witness. It seems that when appellant went -to the hospital at Kerrville she sold what furniture .they had and appropriated the proceeds. She had a married daughter' with whom she had stayed a good deal of the time while appellant was in the hospital.

As we view this record, it wholly fails to show any financial ability on the part of appellant tq support his wife, or that his refusal to work and earn money and contribute to her support was through any willful purpose on his part to bring about such condition. It was never the contemplation of the statute under which this prosecution- is brought that. one should be punished as a criminal and incarcerated in jail because of his- inability to pay a fine or simply because he did not contribute to the support of his wife. One who is unable to work, or who, being able to work, is unable to obtain work, and for either of these' reasons fails to contribute to the support of his wife, could hardly be said to have willfully deserted or failed to support her.

Appellant sought to have the jury instructed that, if they believed from the evidence that his wife, by reason of her conduct and treatment of him, caused him to abandon her, if he did abandon her, and that if such treatment and conduct, on the part of said wife, if any, was the direct and approximate cáuse of his leaving her then they should find appellant not guilty. In our opinion this presented a correct proposition of law. It would certainly not be the contemplation of this or any other statute that if a man’s wife should be guilty of conduct such as to render their living together as husband and wife insupportable, or that would have supported an action for divorce on his part against her, and he leaves her under these conditions, he could be punished for failing to support her. The law imposes mutual obligations upon each member of the marital union, as much upon one to perform his or her part and to meet the duties and obligations imposed' by the relation, as upon the other, and the wife will not be permitted to fail or refuse to perform her part, if capable physically of doing so, and then seek to have her husband punished because he does not do what may be deemed to be his part.

Believing the facts, in this case of doubtful sufficiency to support the conviction, and that the court should have given the charge mentioned, the judgment is reversed, and the cause remanded. 
      ©=3For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     