Appellant makes his motion for rehearing, urging in substance that the record shows that he had made an arrangement with a Mr. Taylor to care for his children for a monthly stipend, and that even tho he failed to pay for such care as he had agreed to, yet that if Mr. Taylor kept said children of his own accord, without permitting them to suffer for the needful things of life, this situation did not amount to an abandonment of said children or a leaving them in destitute and necessitous circumstances; and that to punish appellant under such facts would be tantamount to imprisonment for debt. We cannot agree to this contention. To our minds it appears that if appellant be correct in this, then an arrangement to care for helpless children for a stipulated amount from month to month, could be used as an excuse for permanent abandonment, and the charitable kindness of those who create orphanages to care for such children could be made cities of refuge for those who have not cared for their own. The statute in question requires that the facts show a wilful desertion, and if the evidence in any case shows a continuing contract in good faith, or a case of inability to care for one's children or justification of failure to do so, the offense would not be made out. These are questions for the jury, under appropriate instructions. Nothing of the character above indicated appears in this record.
We adhere to our ruling as to the admissibility of the fact that said children had been sent to an orphanage after the lapse of a number of months, and before this trial. Mr. Taylor, the gentleman with whom appellant left said children, stated that he was no longer able to care for them, and two other gentlemen, whom he named, had carried them to said orphanage. That said children had been so disposed of was not a fact in any way affecting the wilful desertion of said children by appellant or calculated to create prejudice against him, and could not have affected the question of his desertion of them any more than evidence that he had permitted them to remain for the same time at Mr. Taylor's home without support or attention on his part.
We perceive no possible injury in this evidence, and the motion for rehearing will be overruled.
Overruled. *Page 367