Dickey v. State , 82 Tex. Crim. 154 ( 1917 )

Appellant was convicted of deserting his wife, his punishment being assessed at a fine of $100.

Appellant, a boy about twenty years of age, married Miss Essie Thomas, who was about the same age. The marriage occurred about January 10, 1917, at Childress, Texas. They went at once on a visit to appellant's uncle in Arkansas. On their return trip about January 15th, before arriving at Dallas, they agreed that the defendant should go in search of a position or procure some business by which he could make a living and would then return to Wellington for his wife, where she was to remain with her father until appellant had secured a remunerative position. This was an agreed separation for the purpose stated. She did return to and remain with her father while he was to go, as his wife indicates, to Clovis, New Mexico, to engage in business. Upon their separation at Dallas he gave her $15 to bear her expenses while she returned to her father's home at Wellington. Debating the matter in his own mind as to the best opportunities, appellant went to Kansas City to see a friend of his who had promised him a position. Upon arriving there, however, the friend had employed another party, but gave him letters of recommendation, and suggested where he might get employment at some place in the State of Colorado. He went there but arrived too late; another man had secured that place. He then went to another town in Colorado and was again disappointed. Finally, at another point in Colorado he received employment. All this occurred within a few days after their separation, and four or five days after being employed, as above stated, he was taken very ill and remained so for a good while. His mother was telegraphed and came to his bedside, and as soon as he was able to travel she carried him to her home, she being a widow. He made no money and had no other employment, and was not able to do anything while sick and up to the time of and during the trial. His wife went to her father's and remained there. He sent her no money, the reason stated being that he had none; and it is also made to appear that when they were married his wife knew he had no property or money, and what he did have was given him by his mother at the time of his marriage. Her father gave her $30, which she turned over to him, and at their separation he handed her $15, keeping what was left to bear his expenses until he could secure a position. She testified, as did her father, that while she had no property except such as he gave her, that she returned to his home and remained with him, and that he cared for her and furnished everything she wanted and she suffered for nothing. That phase of the case is undisputed. It seems also to be undisputed that defendant had no money except as above indicated, and failed to make anything by reason of his sickness directly after his employment. It was their purpose when they separated at Dallas that he was to get employment and secure a residence for himself and wife, and then she was to go to him, or he was to return for her. This it may be stated is substantially the case on the facts.

There are several questions presented on the rulings of the court which are of a reversible nature both on the introduction of testimony and on the charge and refused instructions. These are all properly and timely presented by exceptions to the charge as well as refused to give special requested instructions. In fact, these matters are presented every way they could be under the practice and procedure in criminal cases. In order to convict a husband under this statute he must not only desert his wife, or fail to support her, as the case may be, but it must be wilfully done. In a sense she was not in necessitous circumstances, for she testified, as did her father, that she wanted for nothing; that he furnished her everything that she desired, and was able to do so. This, however, might not excuse the appellant for not furnishing her means, but it seems to be a fact that he had no money and could furnish no means for her support, all of which his wife understood at the time they were married. He testified he would have sent money to her if he had it, but under the condition he was in he could not secure and did not have it. Under the cases decided by this court we do not believe the State has sufficient evidence to justify an affirmance. Irving v. State, 73 Tex.Crim. Rep., 166 S.W. Rep., 1166; Furlow v. State, 182 S.W. Rep., 308. Taking the case from this standpoint it is unnecessary to discuss the legal questions.

The judgment is reversed and the cause remanded.

Reversed and remanded.

ON REHEARING. November 14, 1917.