Ex Parte Oates , 91 Tex. Crim. 79 ( 1921 )

In his motion for rehearing appellant takes issue with our conclusion as expressed in our original opinion, that one who is sought to be held as a vagrant under subdivision (e) of Article 634, Vernon's P.C., must have been shown to have pursued a course of conduct of some forbidden character in order to bring him properly within the comprehension of the term "vagrant." As illustrative of the fallacy of our reasoning as to the purpose and intent of the various subdivisions of said article, appellant calls attention to subdivision (L) thereof, which says that every person who abandons his wife or child, etc., shall be deemed a vagrant. Appellant insists that it appears from the language of said subdivision (L) that one act of abandonment would make of the actor a vagrant. This might be readily conceded, but what constitutes one act of abandonment? One act of going to town, or away from wife and children, or home, would certainly not amount to an abandonment, and this no matter what might be the announced purpose of the husband or father in so going, provided he did not stay away. Appellant's illustrations strengthen our views of the purpose of the various subdivisions of Art. 634, supra. One does not abandon his wife or children until his course of conduct makes it reasonably evident that he not only has gone away from them, but also intends to stay away and to not support them. A simple withholding of one contribution to their support would not amount to an abandonment, but same must be continued so as to make it a course of conduct.

A comparison of various statutes upon our books which in some way appear to overlap with other laws and which include within their comprehension the same or similar acts, would not appear sufficient ground for holding such laws to be in such vital conflict as to render them inoperative. Subdivision (L) mentioned by appellant makes abandonment of wife and children to constitute one a vagrant under said Article 634; and an examination of Article 640a a little further on in the statute shows that one who abandons his wife and children is made punishable in another way. So of many acts which might be mentioned. We have again considered the matter raised by appellant's motion, but are strengthened in our conclusion that the provisions of subdivision (e) must be held to relate to more than one act, and must intend to refer to a course of conduct, and appellant's motion for rehearing is, therefore, overruled.

Overruled.