Trees v. State

BEAUCHAMP, Judge. Appellant was convicted in the district court of Real County on a charge of child desertion and assessed a penalty of six months in jail and a fine of $500.00. It is revealed by the record that appellant and his wife were married on May 4, 1940, in Real County and that they went immediately to Zavala County where they lived as husband and wife for nearly three months. On July 26 she returned to Real County to visit her mother after he reluctantly agreed and promised to come for her. Instead, she received a letter about five days later informing her that he was leaving for parts unknown, and suggesting that she come to get her things, which she did. He signed the letter, “Your former hus [329] band.” From that time she continued to reside with her parents in Real County. On September 23 the child in question was bom in a hospital in Uvalde County, but was returned immediately to Real County where it continued to reside with its mother and grandparents. The question presented in this case is one of jurisdiction. Article 603 of the Penal Code fixing jurisdiction in such cases reads as follows : “An offense under this chapter shall be held to have been committed in the county in which such wife, child or children may have been at the time such abandonment occurred, or in the county in which such wife, child or children shall have resided for six months preceding the filing of the indictment or information.” It appears that if the father had abandoned the child in Real County he may be prosecuted there regardless of the length of time since the abandonment. However, on the question of residence in a county other than the one where the abandonment took place, a period of six months residence is required in order to give the court of such county jurisdiction. Neither the mother nor the child had so resided six months at the time the indictment was returned, the child being less than three months old. It is apparently the position of the State that the letter in evidence constitutes an abandonment of the mother in Real County at the time it was written on about the 31st day of July and that thereby the jurisdiction was given to the district court of said couny. If he were being prosecuted for the abandonment of his wife and his failure to support her, we would have a different question for consideration, but we find in the evidence a complete abandonment of the mother before the child was a person in being and no act relative to it is shown thereafter. Abandonment in the county cannot be relied upon to give the court jurisdiction in this prosecution, and the six months period required had not matured. Consequently, we have concluded that the court was without jurisdiction at the time the indictment was returned. The judgment of the trial court is reversed and the prosecution ordered dismissed.