Hibbitt v. State

Conviction was for failure to support appellant's infant child, punishment being assessed at six months imprisonment in the county jail.

Only one bill of exceptions appears in the record. While the jurors were being examined on their voir dire, the State's attorney asked them if they believed in the enforcement of the law which makes it an offense for a man to refuse to support and maintain his children. Upon answer being made in the affirmative, appellant's counsel then asked them, "Do you believe that a man should be punished for failure to support his child regardless of the circumstances or reasons for such failure?" The court sustained the objection to this question. We think the question was entirely too general. It in no particular apprised the jury of, nor embraced, any defensive theory.

For the first time, in his motion for new trial, appellant questions proof of venue. No bill of exceptions presents this issue. Under these circumstances this court is not authorized to review the matter. Article 938, Vernon's C.C.P.; McGlasson v. State, 38 Tex.Crim. Rep.; Thompson v. State,72 Tex. Crim. 6, 160 S.W. Rep., 685.

The only other question raised by appellant is that the evidence does not show that he failed to support the child, or that the child was in destitute and necessitous circumstances. In passing upon this issue it is necessary for us to look to the State's testimony in its entirety to ascertain if the complaint is tenable; however, we do not deem it necessary to set out here the evidence, because it raises a question of fact merely, and would not be helpful to the bench or bar of the State generally. After a careful examination of the State's testimony we have reached the conclusion that it was sufficient for the jury to have based thereon its finding against the contention of appellant. It is true the testimony is challenged in some particulars by that of appellant, but this only raises an issue of fact, which it was the province of the jury to determine, and they have settled that in favor of the State. It is only where there is no testimony, or insufficient testimony to support a conviction that this court will be authorized to set it aside, and not as in this instance, where they may be a conflict in the testimony.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING. January 11, 1922.