Smallwood v. State

Conviction is for wife desertion, punishment being one year in the penitentiary.

The prosecution was under article 602, P. C., as amended by chapter 195, Regular Session, 41st Legislature (Vernon's Ann. Penal Code, art. 602).

In Ex parte Heartsill, 118 Tex.Crim. Rep., 38 S.W.2d 803, decided May 6, 1931, motion for rehearing overruled May 27th, 1931, it was held that the amendatory act was unconstitutional by reason of a defective caption.

It therefore becomes necessary to reverse this judgment and remand the cause for such further proceedings as are not inconsistent with the holding in the Heartsill case, supra. In the latter case it was assumed that the misdemeanor statute was still operative. It therefore occurs to us that the proper procedure would be for the district court to transfer the case to the county court to be proceeded on there.

Reversed and remanded with instructions.