Ellis v. State , 101 Tex. Crim. 647 ( 1925 )

Our opinion on rehearing filed in this case on October 21, 1925, will be withdrawn for the purpose of elaborating the views of the court as therein expressed, and the following opinion substituted: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, 234 S.W. Rep. 668, followed by Bobo v. State, 235 S.W. Rep. 878, we held that under Art. 640 P. C. et seq., a man who wilfully and without jurisdiction deserts his wife or minor children under sixteen 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 the opinion that one who is shown to have deserted his children when they are in destitute or necessitous circumstances, should be held guilty of 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 Art. 640-c P. C., that desertion shall be deemed wilful 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 introduce any testimony.

Appellant insists that upon the authority of Elm v. State, 270 S.W. Rep. 856; Otto v. State, 266 S.W. Rep. 287; Frank v. State, 274 S.W. 573; Mercardo v. State, 218 S.W., Rep. 491, and Scciocca v. State, 271 S.W. Rep. 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 case, — which fit the facts of that case, but may not of this one. In Elm's case, supra, we said: "There would hardly seem to be proof of a wilful failure to contribute unless there be some such showing. (Otto v. State, 266 S.W. Rep. 787.)" This expression would clearly apply when the State relied on the wilful neglect or wilful 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 divorce, etc., and we held that there was nothing of wilfulness in appellant's conduct in not paying to her for their children, money under the facts of that case. In Scciocca'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 wilfulness 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 wilfully or without jurisdiction, 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 wilfully and without jurisdiction 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 wilful 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 the prosecuting witness, appellant at a former time had 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 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.

Overruled.