Turner v. State

LATTIMORE, Judge.

Conviction for child desertion; punishment, one year in the penitentiary.

. Our opinion formerly handed down in this case was evidently based on a misapprehension, and same is withdrawn and the following substituted therefor:

The facts show that appellant had four little children, the oldest being ten years of age; that he deserted these children and declined to support them. His wife testified that appellant had contributed practically nothing to the support of the children for many months before the institution of this prosecution. She is corroborated by other testimony. It is in evidence that after the prosecution was begun the sheriff’s force informed appellant that they had a warrant for him, and he agreed to come in and make bond, but instead of so doing he left Texas and went to Oklahoma, where he was later arrested at a tourist camp with another woman, and on the witness stand admitted that he and this woman had been at this ¡tourist camp some two weeks before the officers came and arrested him. There seems no question of appellant’s ability, from a financial standpoint, to have taken care of his children, and nothing to lead us to conclude that his desertion of them was not wilful within the contemplation of our statute.

There were two counts in the indictment, one charging desertion of the wife, who at the time was in destitute and necessitous circumstances; the other count charging the wilful desertion of his four minor children. The learned trial judge submitted only the second count, and the verdict of guilty was based on that count. Under the statutes of this State it is not necessary that it be alleged or proved that the minor children, in a case like this, be shown to be in destitute or necessitous circumstances. It is only necessary that the State show facts justifying the conclusion that the desertion of such children was wilful. In our opinion the facts in this case support that conclusion.

The judgment is affirmed.

Affirmed.