Boattenhamer v. State

Appellant was charged with wife desertion under article 640a, P.C., and his punishment fixed at a fine of $100 and confinement in jail for ninety days.

Appellant contended that the marriage was void because under duress, that if the marriage was legal the desertion was not without justification. The State met the plea of duress by evidence of ratification. These issues were submitted to the jury in a written charge prepared by the court and a special charge given at the request of State's counsel. The special charge submitted the issue of ratification and is complained of in appellant's brief upon the ground that it ignored the other defensive issues and instructed a verdict against appellant in the event the jury decided in favor of the State on the issue of ratification of the marriage. The only exception to the court's charge was embodied in a written exception directed against the special charge mentioned. The State contends that this being a misdemeanor case the defect in the charge is not available on appeal in the absence of a request for special charge correcting the defect. The rule seems to be well established that in a misdemeanor case complaint of a charge is not available on appeal in the absence of written request for a special charge curing the error. See cases listed in Vernon's C.C.P., p. 499; also the following: Ellis v. State,79 Tex. Crim. 461, 189 S.W. Rep., 1074; Wilson v. State,80 Tex. Crim. 266, 189 S.W. Rep., 1071; Bennett v. State,79 Tex. Crim. 380, 185 S.W. Rep., 14; Teem v. State, 79 Tex. Crim. 285, 183 S.W. Rep., 1144; Salter v. State, 78 Tex. Crim. 325, 180 S.W. Rep., 691; Robison v. State, 77 Tex. Crim. 557, 179 S.W. Rep., 1157; Young v. State, 78 Tex. Crim. 305, 181 S.W. Rep., 472. The strictness of this rule appears to be based upon the fact that under article 739, C.C.P., the court is not required to give a charge in a misdemeanor case except upon request in writing, and in fact that in such case the court may, with consent of the parties, give a verbal charge. See cases listed in Vernon's C.C.P., p. 500, art. 740. The theory is that on appeal the proceedings in the trial court are presumed regular in the absence of a legal showing to the contrary, and where a defect in the charge appears which might have been cured by a verbal charge given by consent, the presumption that it was so cured obtains when not negatived and when necessary to support the judgment. Carr v. State, 5 Texas Crim. App., 153.

One of the bills shows an argument by the State's attorney urging the jury to fix a jail penalty for the reason that a fine would not punish the appellant in that it would be paid by his father. This was an improper argument and unexplained, we think, should result in a reversal. The excepted bill, however, is qualified by the statement that the argument was invited by appellant's counsel urging the jury not to assess a fine which appellant's old father would have to pay. This qualification in the bill seems to bring it within the rule laid down by Mr. Branch in section 363 of his Ann. P.C., wherein he cites a number of decisions of this court supporting the proposition that appellant is not entitled to complain of an argument of State's counsel which is occasioned and justified by his own counsel.

The bills of exception which we have not discussed we have examined and we think they present no reversible error.

The judgment is affirmed.

Affirmed.

ON REHEARING. November 6, 1918.