Woodard v. State

Court of Criminal Appeals of Texas

Woodard v. State

218 S.W. 760, 86 Tex. Crim. 632, 1920 Tex. Crim. App. LEXIS 78

CourtCourt of Criminal Appeals of Texas

DecidedFebruary 18, 1920

DocketNo. 5680.

StatusPublished

Cited by12 cases

This text of 218 S.W. 760 (Woodard v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Woodard v. State, 218 S.W. 760, 86 Tex. Crim. 632, 1920 Tex. Crim. App. LEXIS 78 (Tex. 1920).

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Opinion

LATTIMORE, Judge.

—Appellant was convicted in the County Court of Navarro County, of the desertion of his two minor children, and his punishment fixed at a fine of $25.

The information contains two counts—one charging the desertion of his wife, she being in destitute and necessitous circumstances; and the other charging the desertion- of his two minor children, there being no allegation in said count that they were in destitute and necessitous circumstances.

Article 640-a, of Vernon’s Penal Code, which is our statute defining the desertion of wife or children, specifically applies the element of destitution and necessitous circumstances to the desertion of children as well as to the desertion of the wife. We have uni formly held this allegation, as well as proof of the same, to be necessary. On this account the State’s pleading is fatally defective. It is contended by the State that as the question was raised by appellant for the first time, by a motion in arrest of judgment, filed more than two days after the conclusion of the trial, in the lower court, that said question cannot now be raised and relied upon. If an indictment or information be defective in some matter of substance, it would not support a judgment, and an attack may be made on the same for the first time in this Court. Cox et al., 8 Texas Crim. App., 254.

*633 We further observe that when said motion in arrest of judgment was filed, no counter motion to strike the same from the record was made by the State, but said motion in arrest of judgment was considered and overruled generally, by the trial court. In the absence of some showing to the contrary, we would presume that the trial court concluded that there was some sufficient excuse for failure to file said motion sooner.

We are of opinion that the second (lount in said information was fatally defective, and that the matter can be properly raised here.

The judgment of the lower court is reversed and the cause ordered dismissed.

Dismissed.

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LATTIMORE, Judge.

—Appellant was convicted in the County Court of Navarro County, of the desertion of his two minor children, and his punishment fixed at a fine of $25.

The information contains two counts—one charging the desertion of his wife, she being in destitute and necessitous circumstances; and the other charging the desertion- of his two minor children, there being no allegation in said count that they were in destitute and necessitous circumstances.

Article 640-a, of Vernon’s Penal Code, which is our statute defining the desertion of wife or children, specifically applies the element of destitution and necessitous circumstances to the desertion of children as well as to the desertion of the wife. We have uni formly held this allegation, as well as proof of the same, to be necessary. On this account the State’s pleading is fatally defective. It is contended by the State that as the question was raised by appellant for the first time, by a motion in arrest of judgment, filed more than two days after the conclusion of the trial, in the lower court, that said question cannot now be raised and relied upon. If an indictment or information be defective in some matter of substance, it would not support a judgment, and an attack may be made on the same for the first time in this Court. Cox et al., 8 Texas Crim. App., 254.

*633 We further observe that when said motion in arrest of judgment was filed, no counter motion to strike the same from the record was made by the State, but said motion in arrest of judgment was considered and overruled generally, by the trial court. In the absence of some showing to the contrary, we would presume that the trial court concluded that there was some sufficient excuse for failure to file said motion sooner.

We are of opinion that the second (lount in said information was fatally defective, and that the matter can be properly raised here.

The judgment of the lower court is reversed and the cause ordered dismissed.

Dismissed.

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Bluebook (online)

218 S.W. 760, 86 Tex. Crim. 632, 1920 Tex. Crim. App. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woodard-v-state-texcrimapp-1920.

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