
    PERRY v. STATE.
    (No. 5773.)
    (Court of Criminal Appeals of Texas.
    April 14, 1920.)
    1. Criminal law <$=>147 — Prosecution for wife desertion barred by limitations.
    Prosecution for wife desertion which took place four years and more before the complaint was filed in the county court, and about four years before it was sworn to, is barred by limitations.
    2. Husband and wife <&wkey;313 — Evidence held not to show deserted wife in necessitous circumstances.
    In a prosecution for wife desertion, evidence held insufficient to justify finding that defendant’s wife was in necessitous circumstances showing rather that she made a living herself, and that she drove defendant away from home.
    Appeal from Payette County Court; John P. Ehlinger, Judge.
    Bit Perry was convicted of wife desertion, and appeals.
    Reversed, and cause remanded.
    John T. Duncan, of Ba Grange, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for wife desertion.

There are some quite interesting questions in the ease, but, as we understand the record, it will be unnecessary to discuss most of them.

The complaint was sworn to on the 11th day of August, 1919, charging that appellant deserted his wife on the 9th day of August, 1919. The affidavit was filed in the county court on October 1, 1920, as shown by the file mark of the clerk. This may be a mistake in copying the record, as the information was filed on the 2d day of January, 1920. The evidence of the wife, who makes tho complaint, is that he deserted her in August, 1915, without specifying the date. This was 4 years and over before the complaint was filed in the county court, and about 4 years before the complaint was sworn to. This would necessitate a reversal of the case, because the case would be barred by limitation.

The evidence would not justify a verdict sustaining the allegation that his wife was in necessitous circumstances. She showed that she made a living herself. While cooking she received $5 a week, and during cotton picking season she picked cotton, and testified she could pick from 200 to 300 pounds a day, and was getting $2.50 to $3 per hundred for that work. She was much older than her husband, she being about 47, and his testimony shows he was about 19 or 20 when he married her. Some of the testimony, however, shows he was older than 20. She had a son who was as old or older than appellant. The defensive testimony shows she drove appellant away from home and would not permit him to come to her house. But, if it be conceded that he left her without fault on her part,, then the state’s testimony shows beyond any question she was not in necessitous or destitute circumstances.

The judgment will be reversed, and the cause remanded. 
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