
    WILKERSON v. STATE.
    (No. 8297.)
    (Court of Criminal Appeals of Texas.
    June 27, 1924.)
    1. Husband and wife <©=>313 — Evidence held to sustain conviction, for wife and child desertion.
    Evidence held to sustain conviction for wife and child desertion, in violation of Vernon's Ann. Pen. Code 1916, art. 640a.
    2. Husband and wife <©=>305 — That wife and children were sheltered and fed by wife’s mother held no defense in prosecution for desertion.
    That defendant’s wife and children were sheltered under the roof of the wife’s mother, and were fed at her table, held not necessarily to constitute defense against a charge of deserting wife and children, in violation of Vernon’s Ann. Pen. Code 1916, art. 640a.
    Appeal from Harris County Court, at Law; Roy E. Campbell, Judge.
    George Wilkerson was convicted of wife and child desertion, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State'.
   MORROW, P. J.

The conviction is for wife and child desertion; punishment fixed at a fine of $25.

In the inf ormation it is charged that appellant deserted his wife and two children, ages respectively eight and six years. The information is in accord with the statute (article 640a, P. C.).

The case was tried before the court without the intervention of a jury. That' the wife had left the habitation of the appellant, and had become an inmate of the home of her mother, and that the children mentioned were with her are conceded facts. According to her testimony, the separation was due to the cruel treatment of the appellant ; he having curbed and struck her on the day of her departure. It appeared from her testimony that she and her(children were without' resources and were" left upon the bounty of her mother.

Appellant in his testimony attributed their disagreement to his complaint of her neglect of her household duties and the children. While they were living together 'in rented premises, appellant had a charge account at a grocery store, where his credit was good. After .the separation, ,he gave no instructions to the grocer to refrain from honoring the orders of the wife. Upon this fact he, on the trial, based the theory that there was ,an absence of proof of destitution, in that his wife, if she had chosen to. do so, could have purchased groceries upon his accqunt, and that, if she had done so, payment would have been made by. the appellant.

Without discussing the evidence in detail, it is made plain from the record that, if the state’s testimony, was true, the separation was due to the misconduct of the appellant. The children were of tender age. After the separation, no affirmative step had been taken by the appellant to provide for their necessities. The fact that the appellant’s wife and children were sheltered under the roof of the wife’s mother and were fed at her table would not necessarily constitute a defense. Williams v. State, 89 Tex. Cr. R. 560, 232 S. W. 507; Matthews v. State, 84 Tex. Cr. R. 622, 209 S. W. 660; Curd v. State, 86 Tex. Cr. R. 552, 217 S. W. 1043; Reid v. State, 88 Tex. Cr. R. 364, 226 S. W. 408; Boattenhamer v. State, 84 Tex. Cr. R. 210, 206 S. W. 344.

We are not able to say that, in finding the appellant guilty, the learned trial judge,, to whom the facts as well as the law were submitted, was not-warranted by the evidence.

The judgment is affirmed. 
      <©=>For Ottier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     