ON STATE’S MOTION FOR REHEARING.
LATTIMORE, Judge.The state moved for rehearing. Without setting out the grounds at any length, we discuss them. Appellant was a grown man at the time this case was tried. His father and mother were under no sort of legal duty to care for or provide for appellant’s wife or her child. The fact that appellant’s mother for the defense testified without objection, *579on her direct examination, that she and her husband were not able to help appellant take care of said wife and child, would not justify the state, in cross-examination of said mother, over objection, to show either by direct question or indirect admission that the above statement of the witness was untrue. The manner in which the state seems to have gone about this, as reflected in bill of exception No. 11, was to ask said mother, first, if she did not have another son who had gotten into this same kind of trouble; when objection to this question was properly sustained, the state proceeded to at once ask her if she did not have another son named Arthur who was paying five dollars per month to somebody else, and also where Arthur got that five dollars per month, and if witness’ husband had not helped Arthur get that five dollars per month, and then have witness admit that her husband had so helped the other son. These matters certainly were improper, and apparently had for their purpose an attempted impeachment of the witness upon an immaterial but hurtful matter, and same were liable to be construed by the jury both as impeaching the mother and as showing that appellant was failing in his duty to his wife and child because he ought to have gotten help from his father for them.
The state’s motion calls attention to the fact that appellant’s special charge No. 3, which was given, presented appellant’s affirmative defense of his inability to contribute to the support of his wife or child, and to the fact that for this reason we were in error in that part of our opinion wherein we said that the court below failed to submit this affirmative defensive issue.
Our statute, article 2581, Revised Civil Statutes, 1925, provides that if a man having a child shall afterward intermarry with its mother, and recognize such child, it shall thereby be legitimated. Appellant married his wife two days after the birth of the child, for failure to support which he is convicted in this case. He testified that he married her to let the child have his name. The wife and both of her parents testified that for three weeks after said marriage appellant lived with the wife and baby. In' the case of Beavers v. State, 256 S. W., 929, we stated the law as applicable to the illegitimacy of a child whose father and mother had never married. It is doubtful if what we said there has any application to the case before us.
Believing the case properly reversed for the reasons stated regarding the improper cross-examination of the witness Mrs. Pope, as shown in bill of exception No. 11, the state’s motion for rehearing will be overruled.
Overruled.