Miller v. State , 123 Ark. 480 ( 1916 )

' Kirby, J.,

(after stating the facts). (1) It is contended that the court erred in overruling the demurrer to the indictment and that the testimony is insufficient to sustain the verdict. The indictment makes the charge in virtually the language of the .statute, which does not contain the word “wilfully” in describing the offense and its allegations are sufficient. State v. Witt, 39 Ark. 216; Houpt v. State, 100 Ark. 409; Petty v. State, 102 Ark. 170.

The statute was held valid in Green v. State, 96 Ark. 175, and in Dempsey v. State, 108 Ark. 79, the court held that desertion alone of the wife did not constitute the offense, saying: “In order to make out the offense there must also be failure and neglect or refusal to maintain and provide for the. wife and children. This means, of course, a wilful or negligent failure to nmvide, and not mere failure on account of inability. It does not necessarily mean, however, that there must be a complete failure in that respect, for .'an abandonment by a man of his wife and children, coupled with a wilful failure or neglect to adequately provide for their wants, would be sufficient to complete the offense.”

(2) The undisputed testimony shows that appellant made no provision for his wife during the time they lived together, in the wav of furnishing any clothing except a pair of slippers and that he made none whatever after deserting her, to the time of trial.

. . (3) It appears from his father’s testimony that he conld and -would have supplied clothing if he had been requested so to do, and certainly appellant, who with his wife was working for his father, should have had no hesitancy in making such demand and providing such wearing apparel as she may have needed and his.failure and refusal to do so can not be attributable to inability under the circumstances. The flimsy excuse given by appellant for quitting his wife, could not in any event be 'held to bé good cause therefor. The statute in defining the offense in the use of the words “without good cause” evidently meant such cause as was a sufficient ground" for divorce and severance of the marital relations under the -law. State v. Dvoracek, 140 Iowa 266, 118 N. W. 399; State v. Williams, 116 S. W. 1128; State v. Schweitzer, 57 Conn. 532, 18 Atl. 788, 6 L. R. A. 125.

(4) ,No error was committed in permitting the in-

troduction of the letter'written to aupellant by his wife, since on cross-éxamination by his attorney, she had been asked about certain things and statements contained therein, and was entitled to introduce the whole letter in explanation thereof. Stuckey v. O’Neal, 86 Ark. 145; Mitchell v. State, 86 Ark. 486.

„ Finding no prejudicial error in the record, the judg- ’ ment is affirmed.