The submission of the case seems to be misunderstood. The State elected to prosecute on the second count in the indictment charging that defendant did "unlawfully and wilfully desert, neglect and refuse to provide for the support * * *" of his minor children named. The jury's verdict reads: "We, the jury, find Eugene Wills guilty of child desertion as charged in the indictment, and assesses his punishment at confinement in the State penitentiary for a term of two (2) years." This eliminates all questions, save and except child desertion. The only defense to that is that his wife cursed him and told him to leave. Facts constituting desertion are admitted by appellant.
Appellant complains because the trial court refused to give to the jury two requested special instructions. The first one thereof embodied the idea that if appellant's wife had ordered him to leave home, and such was the cause of his desertion of his children, then they should acquit appellant. We do not subscribe to this doctrine. We do not think the acts of the wife, as herein shown, could legally justify a father in the desertion of his children. See Morris v. State,161 S.W.2d 1090, (on motion); Smith v. Givens, 97 S.W.2d 532; Rainwater v. State, 141 S.W.2d 364; 143 S.W.2d 958.
The second requested charge is immaterial since the same relates to appellant's ability to support his children. The jury *Page 568 found him guilty merely of desertion and not of a failure to support his children.
The question of desertion is independent of the question of the failure to support. Williams v. State, 232 S.W. 507. The attention which he gave to his children long after his return from St. Louis, after he had been seeing them on the streets and in the alleys and after proceedings were instituted to send them to the State Home, came too late and will not avail to excuse his admitted acts constituting desertion.
The motion is therefore overruled.