
    ELLIS v. STATE.
    (No. 9534.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Parent and child <@= 17(6) —>Conviction of child desertion held sustained by testimony of defendant’s wife.
    Conviction of child desertion, under Vernon’s Ann. Pen. Code 1916, art. 640a et seq., held, sustained by testimony of defendant’s wife, who was sole witness, that he had been taking from her, since their remarriage following divorce, what she made during their separation, and had contributed nothing to support of their children under 16.
    2. Parent and child <§=>17 (7)— Charge that it was wife’s duty to use solely for children money given her for other necessary purposes properly refused in husband’s trial for child 'desertion.
    In trial for child desertion, special charge, the legal effect of which was to charge wife with duty to use for children exclusively all money given her for other necessary purposes, held properly refused. .
    On Motion for Rehearing.
    3. Parent and child <@=>17(6) — Proof of inability to support children unnecessary to sustain conviction of deserting them while in destitute or necessitous' circumstances.
    One deserting his children in destitute dr necessitous circumstances should be held guilty of violating Vernon’s Ann. Pen. Code 1916, art. 640a et seq., without proof of his inability or unwillingness to support them.
    4. Parent and child <@=I7(5) — State may claim conviction on proof of either of several alleged modes of violating law.
    TVhen charge embraces all of ways in which law may be violated, as in case of indictment under Vernon’s Ann. Pen. Code 1916, art. 640a et seq., for willful desertion of wife or children in destitute or necessitous' circumstances or neglect or refusal to support them, state may claim cohviction on proof of either mode.
    5. Parent and child €=17(6) — Proof that children were in necessitous, though not.absolutely destitute, circumstances sufficient to sustain conviction of willful desertion.
    Testimony that defendant’s children were in “necessitous circumstances” when he deserted them held, sufficient to sustain conviction of willful desertion under Vernon’s Ann. Pen. Code 1916, art. 640c, though it was not shown that they were in absolutely “destitute” circumstances.
    6.Parent and child €=17(7'/2) — $100 fine ánd year in jail for child desertion held not excessive.
    Verdict fixing punishment for child desertion at $100 fine and one year in jail held not excessive, in view of testimony of defendant’s wife that defendant while living with her and children for short time after their remarriage following divorce for prior desertion, used her credit, money, and stock of goods accumulated during separation, and, when he again deserted her, left bills which she had been struggling to meet since.
    Appeal from Wichita County Court at Law; C. M. McFarland, Judge..
    Jack Ellis was convicted of child desertion and appeals.
    Affirmed.
    Mathis & Caldwell, - of Wichita Falls, for appellant.
    W. Somerville, Co. Atty., of Wichita Falls, and Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

From conviction in the county court of Wichita county at law for child desertion,» with punishment fixed at a fine of $100 and one year in the county jail, this appeal is taken.

The facts show that appellant married his wife, and had by her three children, and because of his neglect and treatment of her she procured a divorce from him. In January, 1925, the couple were remarried. On the 3d day of 'April, 1925, the complaint and information in this case were presented. But one witness testified, she being the wife of appellant, and her testimony shows that from the time of their remarriage appellant began to take from her what little she had made or accumulated during their separation,'and that he has contributed to the support of the children nothing. It is needless for us to set out the facts at length. They are sufficient to show that for some time prior to the filing of the information herein appellant had been continually taking from her what money and property she had, and that he was contributing nothing to the support either of herself or of their three minor children under 16 years of age.

The only bill of exceptions complains of the refusal of a special charge, in which refusal we perceive no error. The law does not make it the duty of the wife and mother to take all of the money which is given to her for other necessary purposes and use it exclusively for the children. Such would be the legal effect of the requested charges, complaint of the refusal of which appears in the bill of exceptions.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Our opinion on rehearing filed in this case on October 21, 1925, will be withdrawn for the purpose of elaborating the views of the court as therein expressed, and the following opinion substituted: ■

In O’Brien’s Case, 90 Tex. Cr. R. 276, 234 S. W. 668, followed by Bobo v. State, 90 Tex. Cr. R. 397, 235 S. W. 878, we held that under article 640a, et seq. P. C., a man who willfully and wihout justification deserts his wife or minor children under 16 years of age, who are destitute or in necessitous circumstances violates the law; likewise one who in similar fashion neglects to support them; and also one who in the same way refuses to support them. We are of opinion that one who is shown to have deserted his children when they are in destitute or necessitous circumstances should be held guilty of a violation of the law, without proof of his inability or unwillingness to support them. It may be otherwise when reliance is had in a particular case on that part of the statute which makes guilt dependent on neglect or refusal to support the wife or children. When the charge laid embraces all of the ways in which the law may be violated, the state may claim conviction upon proof of either mode. Looking to the record before us carefully, in the light of the earnest motion for rehearing, we are not prepared to say that the facts do not show desertion of his children on the, part of appellant. It is provided in the last' paragraph of article 640c, P. <1., that desertion shall be deemed willful when the wife or child is shown to be in destitute or necessitous circumstances. While in this case the proof might not show the children to be in absolutely destitute circumstances, it abounds in testimony showing them in “necessitous circumstances.” We think the facts justify the conclusion, that appellant came to where his wife was getting along pretty well, he having nothing, and that, after remarrying her, he used her business, credit, stock, etc., during the time he lived with her and the children. He left them, and went to Oklahoma, and until the time of his arrest he evinced no desire or effort to take care of his children in any way. Appellant did not testify or introducé any testimony.

Appellant insists that upon the authority of Elms v. State (Tex. Cr. App.) 270 S. W. 856; Otto v. State (Tex. Cr. App.) 266 S. W. 787; Frank v. State (Tex. Cr. App.) 274 S. W. 573; Mercardo v. State, 86 Tex. Cr. R. 559, 218 S. W. 491, 8 A. L. R. 1312; and Scciocca v. State (Tex. Cr. App.) 271 S. W. 618 — his motion should be granted and this case reversed ; his claim being that said authorities are decisive of the point made on this appeal.

The particular reliance of appellant with reference to said authorities is that they hold that the. state’s proof should demonstrate the financial ability of the accused, or rather the lack of same, at the time of the alleged commission of the offense; else he would be entitled to an acquittal. Expressions may be found in the opinions in some of said cases which fit the facts of that case, but may not of this one.

In Elms’ Case, supra, we said:

“There would hardly seem to be proof "of a willful failure - to contribute unless there be some such showing. Otto v. State (Tex. Cr. App.) 266 S. W. 787.”

• This expression would clearly apply when the state relied on the willful neglect or willful failure to support, as was true in that case, but not where the state relied on desertion. In Otto’s Case, supra, our conclusion was that the state failed on its proof as to all three of the ways this offense may be committed, and, in saying that to support the allegation of willfulness proof should be made to some extent that appellant could contribute to the support of his children, our attention was not at all directed to the question of the distinction when reliance is had on desertion as the basis for the prosecution. The Frank Case, supra, was decided on the sole issue that the proof failed to show that the wife and children were in destitute and necessitous circumstances. In the Mercardo Case, supra, it was shown that the wife left the accused, sued him for divorcp, etc., and- we held that there was nothing of willfulness in appellant’s conduct in not paying to her for their children money under the facts of that case. In Scei-oeea’s Case, supra, the proof showed that the wife left her husband, and upon his failure to support her filed the charge against him, and the case was reversed because of the failure to support the allegation of willfulness by any proof.

We express again our approval of the rules announced in O’Brien v. State, supra. If the proof responsive to the allegation shall show that the husband willfully or without justification deserted his wife or children in destitute and necessitous circumstances, this would make out the state’s case. In like manner, if, responsive to proper allegation, the proof should show that the husband willfully and without justification neglected to provide for the support and' maintenance of his wife and minor children, the state’s case would be made out, but in such case, as well as where the charge was the willful refusal to provide for the support and maintenance of such wife or children, there should be some proof of the ability of the husband to contribute to such support or of his unwillingness so to do.

Appellant insists that the verdict assessed against him is excessive. The parties were before the jury and the trial court, and were seen and heard by them. The case seems somewhat aggravated. Accepting the statement made by tbe prosecuting witness, appellant at a former time hád left his wife and children without support, and the wife had gotten a divorce and had tried to take care of herself and family. • She said that in the early part of 1925 appellant, who at the time was without money, clothes, credit, or anything of that, kind, came back, and wanted to marry her, and work and assist in taking care of her and the children. She also said that in the hope that he would do this she married him; that during the short time he lived with her and his children he used her credit, her little stock of goods that she had accumulated for use in the photographic studio, her money, etc., and that when he left her and went to Oklahoma, at the time of the alleged desertion, he left her with an accumulation of bills made by him which she had been struggling to meet from that time to the time of trial. We are unable to say that the verdict of the jury is without support, and the motion for rehearing will be overruled. 
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