In his motion for rehearing appellant calls attention to the fact that the complaint upon which the prosecution was based in the County Court of Collin County, did not appear in the record. Our Assistant Attorney General observed the absence of said complaint and very wisely and correctly had obtained from proper authorities a duly certified copy of said complaint and had same filed with the record herein before the matter was called to our attention upon motion for rehearing. Failure to find incorporated in the record a complaint, would be no more than ground for dismissing the appeal, and upon correction of such record by supplying the missing complaint, if in fact one was on file in the lower court, we would re-instate such appeal and consider the case on its merits. Believing that the record has been sufficiently corrected, we do not uphold appellant's contention that this case should be reversed for lack of such complaint, or his appeal dismissed.
Appellant also insists that because of the fact that the information contained two separate counts, one charging wife desertion and the other desertion of his minor child; and the further fact that after the evidence was introduced the State elected apparently to ask for a conviction only upon the second count, that, therefore, it is established that appellant was innocent of the offense charged against him in the first count, and that he is entitled to urge that fact as in some way in bar of his prosecution under the second count. We do not attach to the action of the State in the lower court in such election the same significance attached thereto by appellant. In misdemeanor cases the State may charge separate and distinct offenses in different counts, and in the instant case it is unquestionably true that the charge in one count, of desertion of appellant's wife was a separate and distinct offense from that charged in the second count, which was his desertion of his child. We do not think that the fact that the State, for reasons supposedly sufficient to the prosecuting attorney in the court below, did not ask for a conviction upon the first count would in anywise imply or create any presumption in favor of the accused which could relieve him from prosecution under the remaining count or cast doubt on his guilt. There is abundant evidence on the part of the State that appellant, without any sufficient excuse and in such manner as to justify his act as being considered wilful, abandoned his wife when she was in a delicate condition, and thereafter offered her no support and made no effort to care for his child after its birth at any time. Contention is made that because a few days prior to the actual institution of the prosecution herein, he seems to have offered to renew his conjugal relations with his wife, that t his would condone, if not prevent, his being held guilty of child desertion. We do not think such act *Page 563 would prevent a prosecution of one accused of such crime, either for desertion of the wife or child, and that such offer on his part would be only to be considered by the jury in determining the good or bad faith of the accused and in arriving at a solution of the question of whether his alleged desertion was wilful or not.
Neither do we think that one who abandons his wife or children may seek justification by claiming that he knew they had relatives who would take care of them and not let them suffer. Very few people are permitted to suffer for food or clothing in this country of ours where generosity abounds and orphanages extend their welcoming hands to those who are deprived of shelter and home, but such facts afford neither excuse nor justification to those who are charged by the law of nature and the law of the land with the primary duty of caring and providing for such children and women.
We find no sufficient reason presented in the motion for rehearing for changing our former opinion, and the motion for rehearing is overruled.
Overruled.