
    FREEMAN v. STATE.
    (No. 9726.)
    (Court of Criminal Appeals of Texas.
    March 3, 1926.)
    1. Parent and child &wkey;>17(2) — Where mother in divorce action is awarded exclusive custody of child, father cannot thereafter be held guilty of child “desertion” (Pen. Code 1925, art. 602).
    Where in divorce action mother is awarded exclusive custody of minor child, father cannot thereafter be held guilty of child desertion, under Pen. Code 1925, art. 602; desertion being an act by which a man quits the house of Ms wife and child, or either of them, and renounces his duties towards them. ,
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Desertion (as a Felony).]
    2. Divorce &wkey;>324 — Father’s duty to support child continues notwithstanding divorce decree awarding custody to mother.
    Where divorce decree makes no provision for support of child, and it affirmatively appears that mother has no adequate means of supplying necessities, father’s obligation to furnish maintenance and support' continues notwithstanding. custody is awarded mother.
    3. Parent and child <&wkey;l7(6).
    Evidence held sufficient to sustain jury’s finding of nonsupport of child, under Pen. Code 1925, art. 602.
    4. Criminal law i&wkey;^!! — Plea of former acquit-’ ta} held improperly rejected, though indictment -laid offense subsequent to prior conviction (Pen. Cede 1925, art. 602).
    In prosecution under Pen. Code 1925, art. 602, for nonsupport of minor child, state might have proved offense at any date within period of limitation, notwithstanding averment in indictment that offense took place on certain day, and therefore refusal of court to entertain or submit to jury plea of former acquittal several weeks prior to day of alleged offense was erroneous.
    5. Criminal láw &wkey;>7l3 — Conduct of prosecuting attorney in stating before jury that if court permitted plea of former acquittal he would present plea of former conviction held improper.
    In prosecution for nonsupport of child, conduct of prosecuting attorney, in stating before jury that if court permitted filing or presentation of plea of former acquittal he would present and prove plea of former conviction, held improper and called for reprimand, especially in view of subsequent transactions bringing out prior conviction and implying that former acquittal was result of technicality.
    Appeal fro-m Harris County Court at Daw No. 2; Ray Scruggs, Judge.
    P. D. Freeman was convicted of child desertion and nonsupport, and he appeals.
    Reversed.
    Castle & Coffee, of Houston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

OMld desertion and nonsupport is the offense; punishment fixed at confinement in the county jail for a period of 60 days. Appellant was charged in two counts in violation of article 602 of the Penal Code of 1925, the information using these words:

“ * * * Did then and there willfully and without justification desert, neglect, fail and refuse to provide for the support and maintenance of his said child, being then and there in destitute and necessitous circumstances.”

The date of the offense was laid on the 26th day of February. Appellant presented a plea of former acquittal, in which it was averred that upon a complaint and information making against him the same charge he was, on the 6th day of February, 1925, acquitted of the offense. A jury was called and evidence was heard which was confined to his conduct subsequent to F'ebru-ary 6, 1925. The court declined to entertain or submit to the jury the plea of former acquittal. In so far as the plea is addressed to that part of the statute charging nonsupport of the child, it is not sustained by the evidence. It is believed, however, that, upon the undisputed facts that part of the plea which went to the charge of desertion was sustained. The appellant and his wife had been divorced in 1923. She was awarded the exclusive custody of the minor child. No provision for its support appears to have been made. The appellant having by the judicial branch of the government been legally deprived of the care and custody of his child and such custody having been conferred upon his wife alone he could not thereafter, at least while she was exercising the right of custody of her child, be held guilty of desertion. “Desertion” is defined as' “the act by which a man quits the society of his wife and children, or either of them, and renounces his duties towards them.” State v. Baker, 36 So. 703, 112 La. 801; Corpus Juris, vol. 18, p. 969; 2 Words and Phrases, Second Series, page 13; People v. Dunston, 138 N. W. 1047, 173 Mich. 368, 42 L. R. A. (N. S.) 1065; Wall v. State, 244 S. W. 809, 92 Tex. Cr. R. 549.

The decree of divorce, however, having made no provision for the support of the child, and it affirmatively appearing from the evidence that the mother had no adequate means of supplying it with the necessities, appellant’s obligation to furnish it maintenance and support continued notwithstanding the divorce and the custody awarded to the mother. See Gulley v. Gulley, 231 S. W. 97, 111 Tex. 233, 15 A. L. R. 564, and authorities therein cited, notably Speer v. Sykes, 119 S. W. 86, 102 Tex. 451, 132 Am. St. Rep. 896, wherein it is said:

“The fact that the court awarded the custody of the minor children to the wife did not deprive Sykes of his paternal interest in them, nor- did it discharge him from his legal and moral obligation, to care for and support them. They were still his offspring and a part of his .family.”

While the controverted evidence is sufficient to support the finding by the jury that the appellant willfully neglected to provide for the support and maintenance of his child after February 6, 1925, and prior to the filing of the complaint, the jury should not have been authorized to convict him of the desertion of his child.'

When the appellant attempted to call the court’s attention to his plea of former acquittal, the state’s attorney said, in the presence of the jury, that if the court permitted the appellant to present a plea of former acquittal, the state would present and prove a plea of former conviction. In fact, it was proved upon the trial that the appellant, at some time subsequent to the divorce and prior to February 6, 1925, had been convicted of deserting his child and failing to support it. There was assessed against him upon that occasion a penalty of confinement in the county jail for a period of 60 days, which penalty, we understand from the record, he had suffered. Appellant had a right to present his plea of former acquittal. The averment in the indictment that the offense took place on the 26th day of February, 1925, was not conclusive against the state, and would not have prevented it from proving an offense at any date within the period of limitation.

The conduct of the prosecuting attorney, in making the statement that if the court permitted the filing or presentation of a plea of former acquittal he would present and prove a plea of former conviction, was improper and called for a reprimand by the court. This was accentuated by subsequent transactions. When the appellant attempted to prove his former acquittal,, the prosecuting attorney asked him if it was not a fact that his acquittal was' the result of a. technicality. The objection to this remark was sustained, but the jury was made to know through the testimony of the appellant’s wife that he had previously been convicted of the neglect of his child and the desertion of it and had' served two months in jail.

The matters to which yve have adverted are before this court for review. Without going into further detail, the errors committed were such as to warrant and require a reversal of the judgment.

It is accordingly ordered. 
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