In a motion for rehearing displaying research and ingenuity, the relator insists that in overuling his contention that Article 640a of the Penal Code is void for uncertainty, this court was in error. The statute declares that:
". . . any husband who shall wilfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his wife, who may be in destitute or necessitous circumstances, or *Page 254 any parent who shall wilfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years in destitute or necessitous circumstances, shall be guilty of a misdemeanor."
Article 6 of the Penal Code forbids the courts to give effect to convictions for violations of a statute "so indefinitely framed or of such doubtful construction that it can not be understood, either from the language in which it is expressed, or from some other written law of the state." In Article 9 of the Penal Code the courts are enjoined to construe a criminal statute "according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects;" and in Article 10, it is said that words not specifically defined are to be construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed.
In Lewis Sutherland Statutory Construction, Sec. 86, it is thus stated:
"A statute cannot be held void for uncertainty, if any reasonable and practical construction can be given to its language. Mere difficulty in ascertaining its meaning or the fact that it is susceptible of different interpretations will not render it nugatory. Doubts as to its proper construction will not justify us in disregarding it. It is the bounden duty of courts to endeavor by every rule of construction to ascertain the meaning of, and to give full force and effect to, every enactment of the general assembly not obnoxious to constitutional prohibition. But if, after exhaustng every rule of construction, no sensible meaning can be given to the statute, or if it is so incomplete that it cannot be carried into effect, it must be pronounced inoperative and void."
The word "wilfully" which is used in the statute has often been defined. In some of the decisions it is said that it means with evil intent; without reasonable grounds for believing the act to be lawful. Thomas v. State, 14 Texas Crim. App. 204; Lane v. State, 16 Texas Crim. App. 172; Henderson v. State,53 Tex. Crim. 533. See also Words Phrases, Vol. 4, (2nd Series), page 1294; Cyc. of Law Proc., Vol. 40, p. 938.
"Desertion" is thus defined in Cyc. of Law Proc., Vol. 14, pages 227 and 228:
"In general, the act by which a person abandons and forsakes, without justification, or unauthorized, a station or condition of public or social life, renouncing its responsibilities and evading its duties."
"In domestic relations, the act of forsaking, deserting, or abandoning a person with whom one is legally bound to live, or for whom one is legally bound to provide, as a wife or husband."
In using the terms "desert" and "wilfully" in the statute mentioned, *Page 255 and taking note of the previous definitions of those words, there would seem little room for debate touching the meaning of the statute. Apparently, as used in the statute, the words "wilfully" and "without justification" are equivalent and so are the words "destitute" and "necessitous circumstances." The statute uses these terms in the alternative: "wilfully or without justification;" "destitute or necessitous circumstances." The meaning of the word "destitute" is not difficult of ascertainment. One of the definitions given in the dictionary is this:
"Not possessing the necessaries of life; in a condition of extreme want; without possessions or resources."
Much stress is laid by relator upon the case of Ex Parte Smythe 56 Tex.Crim. Rep., 120 S.W. Rep. 201. By a majority of the court, a statute was held invalid, but not, as we comprehend it, because of its indefiniteness, but because it declared that one guilty of the offense which the statute attempted to define should be punished by a fine which would go not to the State but to the individual named in the statute. This the majority held without sanction to the Constitution but opposed to its principles. It was further held invalid because it deprived the accused of the right of trial by jury. In the majority opinion it was also said:
"The first clause of the act, in defining the offense, says `that every person who shall, without good cause, abandon his wife and neglect and refuse to maintain and provide for her, etc. This section of the act might be upheld on the theory that by the words `good cause' the Legislature intended to say `lawful cause,' that is further to say, those causes enumerated under the divorce law, and hence might be upheld on the theory that the legislature did not intend to punish the husband for failing to support, or for having abandoned the wife, except for those causes expressly defined in the divorce law of this state. If this is the meaning of the Legislature in the act under consideration, then if this legislature is reenacted, or similar legislation is passed, the basis for a prosecution should be succinctly and clearly laid down."
Judge Ramsey, the writer of the dissenting opinion, regarded the law as valid. Touching the words "good cause" he said this:
"Again, we think it perhaps correct to say that the statute may be sustained on the proposition and theory suggested by Judge Brooks in the majority opinion, that the term "good cause" is synonymous with the term `lawful cause.' If it can in fairness be held that the terms are synonymous it will not, as I believe, change the rule as to the validity of the statute."
If, therefore, we comprehend the decision in question, the basis upon which the law was held invalid was not that it was indefinite by reason of the use of the words "good cause" but upon other grounds quite distinct therefrom. The statute upon the same subject *Page 256 as that under discussion is, in the State of Louisiana, almost in the same language as ours and has by the Supreme Court of that state been held valid. See State v. Cucullu, 110 La. 1087; State ex rel. Mioton, 112 La. 802.
As stated above, the statute makes it unlawful to wilfully desert a wife or child or to refuse to provide for a wife or child in destitute or necessitous circumstances. The definition of destitute is not uncertain, and the words "without justification" might be left out of the indictment entirely without affecting its validity, provided it contained the word "wilfully" in its proper connection.
In our judgment, the statute is not invalid, and the motion for rehearing should be overruled. It is so ordered.
Overruled.