Pybus v. State , 94 Tex. Crim. 524 ( 1923 )

Appellant insists that we erred in holding admissible the testimony as to the condition of the health of his wife at the time he left her, and at the time of the alleged desertion of the minor child, upon which this prosecution was based, and the further fact that appellant's wife gave birth to another child about two months after he went away. The offense, if any, committed by appellant is based upon the elements of wilfulness and lack of justification. We can not escape the proposition that if one be charged with desertion of his minor child and could establish the fact upon his trial that he left the child's mother in good health, holding a good position, capable of earning a good salary, that these things would be worthy of consideration in determining the wilfulness and lack of justification on his part. On the other hand we find ourselves unable to get away from the proposition that one who leaves his minor child at a time when its mother is incapable of working and making a living for it and herself, or in any way contributing to her part of the burden, of its support, this is entitled to consideration at the hands of the court or jury called upon to determine whether his action is wilful and without justification.

The only other question urged is that we erred in holding the evidence sufficient to support the proposition that he wilfully and without justification abandoned his minor child. We have again reviewed the facts which were submitted to the jury and passed upon by them. Our own province in matters of fact is to ascertain if there be evidence sufficient to support the conclusion reached by the jury. They are made by law the exclusive judges of the credibility of the witnesses, of the weight of the testimony, and of the facts proven. Whether we would reach the same conclusion on the facts as that arrived at by the jury, is in nowise the question. Unless the record before us is so devoid of testimony supporting the conclusion reached, the rule of this court is to decline to interfere. We are not led to believe the verdict of the jury in this case to be without support in the testimony, or to reflect prejudice or passion on the part of said jury.

The motion for rehearing will be overruled.

Overruled.