Opinion
No. 14334.
Delivered June 10, 1931. Reported in 39 S.W.2d 1116.
1. — Desertion — Wife — Indictment — Statute.
In prosecution for and conviction of a felony under provision of chapter 195, Regular Session of the 41st Legislature, amending article 602, P. C., cannot be sustained since the amendatory act is unconstitutional and void.
2. — Same.
In prosecution for wife desertion, where the amendatory act makes the offense a felony which is denounced in the original act as a misdemeanor is void, appellant is amenable to prosecution as a misdemeanor under the provision of the act which was sought to be amended. See Ex parte Heartsill, 118 Tex. Crim. 157, 38 S.W.2d 803.
Appeal from the District Court of Red River County. Tried below before the Hon. R. J. Williams, Judge.
Appeal from a conviction for wife desertion; penalty, confinement in the penitentiary for one year.
Reversed and remanded with instructions.
The opinion states the case.
R. E. Eubank, of Paris, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for wife desertion, punishment being one year in the penitentiary.
The prosecution was under article 602, P. C., as amended by chapter 195, Regular Session, 41st Legislature (Vernon's Ann. Penal Code, art. 602).
In Ex parte Heartsill, 118 Tex.Crim. Rep., 38 S.W.2d 803, decided May 6, 1931, motion for rehearing overruled May 27th, 1931, it was held that the amendatory act was unconstitutional by reason of a defective caption.
It therefore becomes necessary to reverse this judgment and remand the cause for such further proceedings as are not inconsistent with the holding in the Heartsill case, supra. In the latter case it was assumed that the misdemeanor statute was still operative. It therefore occurs to us that the proper procedure would be for the district court to transfer the case to the county court to be proceeded on there.
Reversed and remanded with instructions.