*1 Appeals has foregoing opinion of the Commission Appeals Judges Court Criminal been examined approved the Court. Eugene 16, 1943. No. 22556. Delivered June Rehearing January 5, Denied Rehearing (Without Denied

Request for Leave File Second Motion Opinion) Written opinion states case. *2 Orange, Stephenson, of K. Austin, Bell, Attorney, for the

Spurgeon E. State. State’s of BEAUCHAMP, Judge. given year

Appellant a two was sentence for the desertion of his children. exception. There are The record is us without of before bills charge charges exceptions requested and which the court’s given charge find, main

were not but we that the contained things stantially as and that it submits jury by the the evidence. issues raised sufficiency

There could be contention the no about rending story support evidence to the verdict. The heart left, helplessness want of five financial his children the mother, appel- their invalid and the circumstances under which baby, a lant left them week after the about burial of their ac- daughter companied by year fifteen old his and another woman unlawfully cohabiting with whom he was accused of of—all stayed in Louis whom Saint for several months before return- ing Orange picture daughter, the State’s of the case. The —is woman, appellant eventually support the and returned but no given children, eventually have to the is shown to sent been who were daughter orphans’ home. The to the State married and took county mother out of the home for a her short while and sent helpless rather father and mother. her to her All of this and supported produced evidence the more is defense, daughter a As testified to misconduct of mother, men, her her association with other and her abuse sought appellant. As a defense he to involve another man further character, well to show his wife was a common as though paralyzed practically had and she an invalid since eight the fifth of children the birth of born to them. He testi- gave produced along line, witnesses who evidence fied and this charge making a strenuous defense to the that he deserted his any bearing wife, had of which on the one none issue which the to the desertion. court submitted —child greater financial want It would be difficult find record implications in the one before immoral than that contained and physically an was That the mother of us. morally invalid, in temper impossible, unfit had probative excuse the con- of no force to the evidence but was charge appellant make for him a defense duct of or he the father of he was He admits was which convicted. them is inconse- children and of efforts to his claim parental quential. care are entitled to children unable, contends, If the mother unfit as the be fact, law, and, responsibility, is none the less conduct reprehensible. He left with her. The more guilt heavy' penalty supported by the and the as- evidence for the to determine. sessed is a matter judgment the trial court is affirmed. *3 ON MOTION FOR REHEARING.

GRAVES, Judge. to The submission case seems be misunderstood. The prosecute elected on State to the second count indictment charging “unlawfully desert, wilfully that defendant did * * *” neglect provide refuse to his minor “We, jury, named. The reads: find verdict children Eugene charged guilty of child desertion as the indict- ment, punishment at assesses confinement the State years.” (2) a term of two This eliminates except only questions, save and child desertion. The defense to him and told leave. that his wife cursed him to con- Facts stituting by appellant. are admitted desertion give Appellant complains the trial because court refused to requested special The one two instructions. first appellant’s the idea that if wife had thereof embodied ordered home, and such was the cause of his him to leave desertion they acquit should We do not then do not think the acts to this doctrine. We scribe legally shown, justify a the desertion of herein could State, (2d) 1090, (on v. 161 Morris S. children. See Givens, 532; (2d) ; motion) 97 S. W. Rainwater v. v. Smith 364; (2d) (2d) 143 W. State, S. 141 S. W. charge is immaterial since second The ability his chillren. appellant’s

relates guilty merely not of failure to desertion and found him support his children. independent question of desertion is State, 232 S. W. 507. the failure Williams long gave after his return which he his children attention seeing Louis, he had them on the streets and after

from St. in the alleys proceedings and after were instituted to send Home, late and will not avail to excuse came too to his admitted State constituting desertion. acts is therefore overruled. The motion

26,

JANUARY Edward Francis v. The Goodale 22660. Delivered

No.