This appeal was dismissed at a former term of this Court because of an imperfect record. The record has been perfected, the appeal is reinstated and the case will be considered on its merits.
The offense is wife desertion, the penalty a fine of $25.00.
The parties to this controversy are all negroes. The evidence of prosecuting witness, Rosetta Gray, is in substance that she and appellant were married in January, 1927, as a result of appellant's seduction of her. They went to live in the home of appellant's father; that while there there occurred no quarrels or other disagreements between her and appellant; that in March, 1927, she and appellant's sister engaged in a quarrel and that she filed a complaint against appellant's sister for abusive language, which resulted in an acquittal of the sister of appellant; that the County Attorney then advised her to not return to the home of appellant's father and she thereupon went to the home of her mother, where she had been since. Witness does not claim that appellant ever mistreated her or that he took the part of his sister, whom she charges with doing so. It appears further that the jury apparently found against prosecuting witness with respect to the transaction with his sister.
As part of the State's case it was indispensably necessary to prove beyond a reasonable doubt that appellant's desertion, if any, was without justification. Boattenhamer v. State, 84 Tex. Crim. 210. Under the terms of the statute itself such desertion must have been wilful. Art 602, P. C. See also Dickey v. State, 82 Tex.Crim. Rep.; Mercardo v. State, 86 Tex. Crim. 559. *Page 181
We think the evidence is entirely insufficient to show a wilful desertion, or any desertion for that matter.
The judgment is accordingly reversed and cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.