sists the right in this case was abused. Appel-1 the homicide her relations with the appellant lant was unfortunately situated. He had killed his mother-in-law and for some reason preferred not, or dared not, place her daughter, his wife, upon the witness stand. The state's theory was that this unhappy situation was brought about by appellant's own acts; and doubtless the arguments of state's counsel in referring to his fear of his wife's testimony was telling and harrowing; but if they had taken that as their text, and confined their entire argument to it, as long as it was within the bounds of proper discussion, no error was committed. We think they were clearly within the limits of legitimate deductions in every thing stated by them as disclosed in the bill.

were unsatisfactory to a degree that a separation resulted. In a controversy growing out of it, the deceased, in the presence of her* daughter, was killed by the appellant. That it was accidental was his theory; that it was intentional and malicious was the state's theory. All of this was before the jury, and, in addition thereto, they knew that the appellant did not use his wife as a witness. They were legitimately told that he might have done so had he wished, but that the state could not. They knew from the evidence that her situation was such as would enable her to relate what took place at the time of the homicide. These matters were the basis of legitimate argument. We cannot persuade ourselves that they would not suggest the inference that the appellant refrained from using his wife as a witness because of his

We have been very greatly aided in this case by the exhaustive brief for the state filed by Mr. Brown, the district attorney of Tarrant county. If all the prosecuting of-knowledge that she was unfriendly—would ficers would adopt a similar practice it would be a great help to the Assistant Attorney General in the discharge of his duties, and would largely facilitate the labor of the

court.

not give evidence supporting his theory. The language used by the prosecuting attorney, while not the best that might have been selected for that purpose, was adapted to press upon the jury's attention this legitimate in

Finding no errors in the record, the judg-ference. ment of the trial court is affirmed.

On Motion for Rehearing. MORROW, P. J. The language used by the prosecuting attorney in referring to appellant's wife is thus stated in the bill:

66 * * She, and she alone, was the only eyewitness to the killing except the defendant, and that she could and would tell how the killing took place, but that the state was powerless to put her on the witness stand as a witness, and that the defendant, and the defendant alone, could place her on the witness stand and let her testify. This he refuses to do, but keeps her mouth closed, and if she could only testify she would tell you how her mother was murdered by the defendant."

The other matters referred to in the motion for rehearing, all of which were urged upon the original hearing, have been re-examined in the light of the motion. We are not able

to bring our minds in accord with the contention of appellant's counsel that a proper disposition of the questions raised was not made in the original opinion.

We therefore overrule the motion for re hearing.

1. Criminal law 7212 (3)-Defendant's reference to prosecutor's unsuccessful effort to bring out defendant's bad character held proper.

a

In a prosecution for keeping and exhibiting gaming table and bank for the purpose of gaming, where the prosecuting attorney_on cross-examination of defendant had undertaken to develop the fact that defendant was living in a whorehouse, it was proper for defendant's counsel in argument to jury to refer to the counsel in argument to jury to refer to the

matter.

The fact that the state's attorney called attention to appellant's failure to use his wife as a witness, and to the fact that he alone could so do, is not complained of, but the criticism is addressed to the language chosen and quoted above as transgressing the rule forbidding counsel in argument to state facts not in evidence; that the expressions, "She could and would tell," and "she would tell how her mother was murdered by the defendant," was a statement of fact rather than an inference from the evidence before the jury. Doubtless more appropriate language might have been chosen. In the light The Court of Criminal Appeals will selof the record-that is, the testimony of the witnesses and the facts necessarily before dom disturb the conviction because of alleged the jury in the instant case we are yet of trivial in their nature; but where the prosecuimproper arguments of prosecuting attorneys, the opinion that the argument furnishes no tor departs from the domain of legitimate arjust ground for a reversal of the judgment.gument, and undertakes to supply testimony Appellant's wife was a daughter of the in argument to the jury, the judgment will be deceased. There was evidence that before reversed.

2. Criminal law 1171(1)-Prosecutor's departure from legitimate argument ground for reversal.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

3. Criminal law 1171(6) — Improper argument of prosecuting attorney held ground for reversal.

In a prosecution for keeping and exhibiting a gaming table and bank for the purpose of gaming, in which the prosecuting attorney had unsuccessfully tried during examination of defendant to elicit the fact that he was living in

a whorehouse, and in which the defendant's counsel in argument to the jury referred to such unsuccessful attempt, the action of the prosecuting attorney during argument to jury, stating as a fact that defendant did live in such a house and that he had no regular employment, and in referring to him as a "whorehouse gambler," held ground for reversal; it being impossible in such case to know the extent to which such improper argument influenced the jury.

a gaming table. You ought to convict this defendant, who lives at a whorehouse, who never did an honest day's work in his life. Convict this whorehouse gambler."

lant's counsel objected to this argument on The bill of exceptions shows that appelthe part of the district attorney, and requested the court to instruct the jury to disregard the same, which the court declined to do.

[1, 2] The bill as presented shows that the district attorney undertook, by cross-examination of appellant himself, to show that he was living at a whorehouse. denied this. There is no testimony in the Appellant record from any other source which would indicate that it was true. The character of the appellant was not put in issue in any way Appeal from District Court, Bell County; so far as the record discloses; in fact, the M. B. Blair, Judge.

Charlie Roach was convicted for keeping and exhibiting a gaming table and bank for gaming purposes, and he appeals. Reversed

and remanded.

Holley & Ferguson, Evetts & White, Winbourn Pearce, and A. L. Curtis, all of Temple, for appellant.

bill of exceptions shows as a fact that this was not done. The district attorney having undertaken to develop this fact on crossexamination of appellant, and having failed, it was legitimate argument for appellant's counsel to refer to the matter; and in reply thereto the district attorney undertakes to supply the failure in proof by stating in argument as a fact that the defendant did

R. H. Hamilton, Asst. Atty. Gen., for the live at a whorehouse, and called upon the State.

HAWKINS, J. Conviction was for keeping and exhibiting a gaming table and bank for the purpose of gaming. Punishment was assessed at three years' confinement in the penitentiary.

In the disposition which it will be necessary to make of this case, it is not necessary to set out the evidence. It was sufficient to support the conviction.

It is made to appear by a bill of exceptions that, while appellant was testifying in his own behalf, he was asked by the prosecuting attorney in regard to his employment, and, further, if he was not living in a whorehouse, to which the appellant replied that he was not. During the argument of his counsel, reference was made to the questions and answers as shown by the bill of exceptions, and the attorney then stated to the jury that: "The conduct of the district attorney in making such inquiry showed the limit to which the state would go in this case to secure a conviction, and that the matters inquired about had nothing whatever to do with the guilt or innocence of the defendant in this case."

jury to convict this "whorehouse gambler."
Many complaints are made to this court of
arguments of prosecuting officers, which com-
plaints are trivial in their nature, and are
frequently as to deductions and conclusions
drawn by the attorneys. It is seldom that
this court disturbs a conviction under those
circumstances. But where the prosecuting
officers depart from the domain of legitimate
argument, and undertake to supply testimony
in their discourse to the jury, it is going
further than this court can sanction.
It is
regrettable that the prosecuting officers so
frequently, in their zeal to secure a present
conviction, overlook the fact that it is a
barren victory, if they inject into the case
matters which are extraneous to the record,
and compel this court to reverse the case.

[3] The punishment of appellant was fixed at three years' confinement in the penitentiary. It is impossible for this court to know to what extent the improper argument of the district attorney influenced that result, and under the showing made by the bill of exceptions this court will not speculate upon that proposition. Wilson v. State, 81 Tex. Cr. R. 216, 194 S. W. 828; Marshall v. State, 76 Tex. Cr. R. 386, 175 S. W. 154; In his closing argument the district attor- Turner v. State, 39 Tex. Cr. R. 329, 45 S. W. ney reverted to this same subject, and said: 1020; Thompson v. State, 67 Tex. Cr. R. 660, "These matters have a great deal to do with 150 S. W. 181; Paris v. State, 62 Tex. Cr. R. this case; that the fact that defendant lived in 354, 137 S. W. 698; Patterson v. State, 60 S. a whorehouse, and that he had no regular em- W. 560; Stone v. State, 22 Tex. App. 185, 2 ployment, showed that he is the kind of a man S. W. 587; Stevens v. State, 70 Tex. Cr. R. who would be guilty of keeping and exhibiting | 565, 159 S. W. 505.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[2, 3] The proof is uncontroverted that the Kirby, King & Keeble, of Abilene, for ap- parties-appellant and Avant-had had a pellant. previous difficulty and made mutual hostile

Alvin M. Owsley, Asst. Atty. Gen., for the demonstrations; that thereafter each of State.

them had armed themselves; that when they met shots were fired by the appellant and a demonstration made by Avant. The relative time at which Avant made the demonstration

that is, whether before the appellant fired or not-was the vital controverted point. Avant and one of the parties who was with him at the time described this phase of the encounter in a manner conflicting with that

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

5. Husband and wife 305-Parent and child

of the appellant. All agree that the absent [ not raise any presumption in favor of the witness was riding in the car with Avant a defendant which would relieve him from prosefew moments before the firing began. It cution under that count or cast doubt on his cannot, therefore, be said that it is so im- guilt. probable that he saw what took place as to justify ignoring the application upon that ground, and recalling the facts to which we have briefly adverted, showing the ill feeling between the parties, the previous difficulty, Avant's conduct in arming himself, testimony of his threats, and the description by the appellant of his conduct, we think a conclusion that he would not testify in corroboration of the appellant's theory not warranted. Phipps v. State, 34 Tex. Cr. R. 560, 31 S. W. 397; Roquemore v. State, 54 Tex. Cr. R. 595, 114 S. W. 140; Koller v. State, 36 Tex. Cr. R. 499, 38 S. W. 44; Beard v. State, 55 Tex. Cr. R. 154, 115 S. W. 592, 131 Am. St. Rep. 806; Branch's Crim. Law, § 259.

17(1)-That after desertion husband offered to renew conjugal relations no defense. Though a few days prior to the actual institution of a prosecution for desertion of his wife and infant child defendant offered to rebar to a prosecution for either the crime of new his conjugal relations, that offer is no desertion of a wife or desertion of the child, but can be considered merely on the question whether the desertion was willful. 6. Husband and wife

305-Parent and child

17(1)—That wife and child were provided for no defense to prosecution for desertion.

In a prosecution for desertion of his wife and his infant child, the fact that the two were

For the reasons stated, the judgment is provided for is no defense, for it is very rare reversed, and the cause remanded.

that actual suffering results from such desertion.

Appeal from Collin County Court; T. O. Murray, Judge.

John F. Williams was convicted of desertion and failing to provide for the sup

(Court of Criminal Appeals of Texas. May 4, port and maintenance of his child, and he 1921. Rehearing Denied June

22, 1921.)

1. Husband and wife 313-Parent and child 17(6)-In a prosecution for desertion, evidence sufficient to sustain conviction.

In a prosecution against a husband and father for desertion, including the refusal to provide for the support and maintenance of his child, evidence held sufficient to sustain a conviction.

On Motion for Rehearing.

2. Criminal law 1088 (16)-Where certified copy of complaint was filed in record, appeal will not be dismissed.

Upon appeal from a conviction of desertion, where the Assistant Attorney General obtained from the proper authorities a duly certified copy of the complaint and had it filed with the record, the fact that there was no copy of the complaint incorporated in the record, which at most would be merely ground for dismissing the appeal, is no ground for re

versal or for dismissal of defendant's appeal. 3. Indictment and information 130-Separate misdemeanors may be charged in differ

ent counts.

In misdemeanor cases, cases, the state may charge separate and distinct offenses in differ

ent counts.

appeals. Affirmed.

Woodville Rogers, of McKinney, for appellant.

R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J. The conviction is for desertion, including the refusal to provide for the support and maintenance of his child. Punishment is fixed at a fine of $400 and confinement in the county jail for six months.

[1] The sufficiency of the evidence is assailed. The prosecution was established August 30, 1920, and tried in December, 1920. Appellant married in September, 1918. He abandoned his wife in November, 1919. She, at the time, was living with appellant's father, who was in very poor circumstances. She remained there a week, and then went to the home of her own father, who was old

and also very poor. Appellant left no money or means of support save that his father testified upon the trial that, while he had not so informed the appellant's wife, he would have been willing for her to have remained as a member of his family. Appellant's Ichild was born in March, 1920. It had received no support from the appellant; had no property; its mother was unable to supno property; its mother was unable to support it; it was dependent upon the charity Where one count of the information charg- of relatives, who were likewise unable to ed wife desertion and the other desertion of maintain it. No communication with aphis minor child, the fact that after introduc- pellant was exchanged until about five days tion of evidence the prosecutor elected to before the prosecution began, though the ask for conviction upon the second count did I wife sought, in the meantime, to learn of

4. Criminal law 678 (4)-That prosecutor asked for conviction on only one count held not to relieve defendant from prosecution

on other count.

For other cases see same topic and KEY-NUMBER in ali Key-Numbered Digests and Indexes

The judgment is affirmed.

On Motion for Rehearing.

the whereabouts of her husband. About [tion under the second count. We do not atfive days before the prosecution he wrote tach to the action of the state in the lowher a letter and offered to renew his rela- er court in such election the same signifitions with her, admitting his wrong and cance attached thereto by appellant. In seeking forgiveness. This declined. misdemeanor cases the state may charge Appellant testified: That at the time of his separate and distinct offenses in different departure he went to East Texas in search counts, and in the instant case it is unquesof work. That he returned in about three tionably true that the charge in one count weeks, and learned that his wife had gone of desertion of appellant's wife was a septo her father. He did not claim to have had arate and distinct offense from that charged any contract or agreement with his father in the second count, which was his deserto support her. That he did not go to his tion of his child. We do not think that the wife on his return, because he regarded fact that the state, for reasons supposedly himself as unwelcomed at her father's house. sufficient to the prosecuting attorney in the He knew of her pregnancy at the time of court below, did not ask for a conviction his departure. He claimed to have made upon the first count, would in any wise imarrangements for medical attention during ply or create any presumption in favor of her confinement, but that this was contro- the accused which could relieve him from verted. We are unable to concur in the prosecution under the remaining count or view of the appellant. In our opinion, the cast doubt on his guilt. There is abundant proof shows the commission of the offense evidence on the part of the state that apcharged. pellant, without any sufficient excuse and in such manner as to justify his act as being considered willful, abandoned his wife when she was in a delicate condition, and thereLATTIMORE, J. [2] In his motion for after offered her no support and made no rehearing appellant calls attention to the effort to care for his child after its birth fact that the complaint upon which the at any time. Contention is made that, beprosecution was based in the county court cause a few days prior to the actual inof Collin county did not appear in the rec-stitution of the prosecution herein he seems Our Assistant Attorney General ob- to have offered to renew his conjugal reserved the absence of said complaint, and lations with his wife, that this would convery wisely and correctly had obtained from done, if not prevent, his being held guilty proper authorities a duly certified copy of of child desertion. We do not think such said complaint, and had same filed with the act would prevent a prosecution of one acrecord herein before the matter was called cused of such crime, either for desertion of to our attention upon motion for rehearing. the wife or child, and that such offer on his Failure to find incorporated in the record a part would be only to be considered by the complaint, would be no more than ground jury in determining the good or bad faith for dismissing the appeal, and upon correc- of the accused and in arriving at a solution tion of such record by supplying the miss- of the question of whether his alleged deing complaint, if in fact one was on file in sertion was willful or not. the lower court, we would reinstate 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.

ord.

[3-5] 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 prosecu

[6] 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.