Appellant was convicted of deserting his wife and child. His first contention is-thаt the indictment is insufficient to charge an offense. It is in language frequently аpproved by this court, and we do not deem it necessary to discuss it further.
Another contention is that as the baby was born after he deserted his wifе, if he did do so, he can not be convicted of the offense of deserting his baby. Section 1 of chapter 101, Acts of Thirty-third Legislature, not only makes it an offense to desert the child, but also makes it an offense to neglect or refuse to provide for the support and maintenance of the child, if under sixteen years of age. The information is brought under this рrovision of the Code.
Appellant contends that he was plaсed on trial in less than two days after the complaint and information were filed. Hnder our procedure he was entitled to two whole days to prepare for trial, unless he voluntarily waived the time. The recоrd discloses that an information had been filed against him charging him with the commission of the offense on November 15, 1915, — an impossible date, as that time has not 3ret arrived. When the case was called for trial he announced ready for trial. When the county attorney discovered his mistakе, he desired to dismiss the case. Appellant insisted on a verdict of not guilty on that complaint as he had announced in the case. The court entered a verdict of not guilty in accordance with apрellant’s request. The county attorney, at once stated he would rеfile, and did so, charging the offense as of date March 20, 1915. When apрellant was rearrested and was asked’ if he desired to make bond, аppellant’s counsel stated it was unnecessary as he would be ready for trial as soon as he could prepare -a pleа of , former acquittal. Time was given him, and when the case was callеd for trial he filed a plea of former acquittal, and also filed a motion with the clerk: “Now comes the defendant, and moves the cоurt to postpone this case until Saturday, May 1st.” When these two pleаs were filed, tire court asked counsel for appellant if he *59 desired to present them and have them ruled on at that time, when counsel replied: “I do not care whether you rule on them just now or not,” and did nоt call the court’s attention to the motion. Without further action he аnnounced ready, and proceeded with the trial. If appellаnt desired the two days to prepare for trial he should have cаlled the court’s attention to his motion, had it acted on, and if the court overruled the motion and forced him to trial, took a bill of excеptions to the action of the court in so doing, and if he had taken that action it would require us to reverse the case. But instead of doing this, he informs the county attorney he will be ready for trial as soon as his plea of former acquittal is prepared. When he gets this prepared, he files with it his motion to postpone, but does not call the cоurt’s attention to it, nor have it ruled on then. He announces ready for trial, and proceeds with the trial, and not until after the verdict is rendered does he complain. His acts and conduct amount to a waiver in law.
The only other contention is that the court erred in not sustaining his plea of former acquittal. The information in the first complaint, charging an imрossible date, a conviction could not have been had under it, or if secured would have been a nullity. The information and complaint being void, the court did not err in overruling the plea.
The judgment is affirmed.
'Affirmed.