We conclude we were in error in entering a judgment of affirmance in this case.
The special charge complained of was subject to the construction, and was doubtless construed by the jury as an instruction that if the appellant ratified the marriage that he should be convicted of desertion without reference to the conclusion the jury might reach with reference *Page 212 to the other defenses urged by him. A part of the State's case was to prove that the desertion was without justification. What conditions or facts justify the conclusion that the desertion was without justification is for the jury to solve as the statute does not define them. Appellant urged and introduced evidence to meet the contention of the State that he was not justified in desertion and the effect of the special charge was to withdraw this issue from the jury. It is true that the court charged the statute, that is, that the desertion must be without justification in his main charge, but the effect of the special charge was to impress the jury with the view, in the absence of ratification, the appellant was to be convicted.
In reviewing the matter we are of the opinion that the bill of exceptions which appellant reserved to the action of the court in giving the special charge in question, under the peculiar facts of the case, was such as to require this court to consider it, and that it presents an affirmative error such as was passed on in the case of Novy v. State, 62 Tex.Crim. Rep., 138 S.W. Rep., 139, wherein the court used the following language: "Ordinarily in a misdemeanor case a defective charge of the court where no special charge is requested by the appellant, would not be reversible error, but where the charge itself is affirmatively wrong and an exception is properly taken thereto and shown by proper bill of exceptions and further set up in motion for a new trial we can not hold and do not hold that it is not reversible error."
The motion for rehearing is, therefore, granted, the judgment of affirmance set aside and the judgment of the County Court reversed and the cause remanded.
Reversed and remanded.