Bennefield, the plaintiff in error, was accused in the city court of Carrollton with the offence of a misdemeanor, in that on the 1st of May, 1886, “ he wilfully and voluntarily abandoned' his child, Willie, a boy ten months old, and left him in a dependent and destitute condition.” He waived trial by jury and agreed to be tried by the judge. The judge, upon hearing the evidence in the case, found the defendant guilty; whereupon he made a motion for a new trial on the following grounds: 1st, because the court erred in ruling out the testimony of Alfred Hanna, to the effect that the cause of the defendant’s separation from his wife was adulterous conduct on her part on the day of the separation and at divers other times before, and that knowledge of these facts came to the defendant; 2d, because the verdict and judgment of said judge is contrary to law; 3d, because it is contrary to the evidence.
1. The gist of this offence is the voluntary and wilful abandonment of the child and leaving it dependent and destitute. The conduct of the mothér is in no way involved on the trial of the father for this offence. Her conduct may be ever so outrageous. It may be so bad that
2. It is argued that the court found contrary to law because the separation of the husband and wife occurred in. Heard county, and therefore the court in Carroll county had no jurisdiction to try the case. The record discloses the fact that, while the separation between husband and wife took place in Heard county, the husband hired one Sheats to move his wife and child to her father’s in Carroll county-The child, according to the evidence, was not dependent and destitute in Heard county, but became so only after it was left in Carroll county; and from the time of the separation up to the trial of the case, the husband had never contributed a cent towards the support and maintenance of the child.
3. It was urged in the 3d ground of the motion that the court found contrary to the evidence, because it was not shown that the abandonment was voluntary and wilful. We think there was sufficient evidence to authorize the finding upon this issue. It is true that if the wife was guilty of the offence charged against her, the law would not compel the husband to live with her, and he would be justifiable in separating himself from her; but the law still compels him to support his child; and if he sends her away into another county and the child along with her, and fails to provide for it, either by sending to her or (o some one else clothing and provisions for the use of the child, the abandonment becomes voluntary and wilful, although he may seek to retain the child at the time of the separation, as he claimed in his statement to the court was done in this case. The child was only ten months old at the time of the separation, and was dependent upon the mother for its food and nourishment, and it would have been improper for him to have taken the child from the
Judgment affirmed.