Noodleman v. State

• Decision Date: 14 October 1914
• Docket Number: (No. 3215.)
• Citation: 170 S.W. 710
• Parties: NOODLEMAN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 710

170 S.W. 710

NOODLEMAN v. STATE.

(No. 3215.)

Court of Criminal Appeals of Texas.

October 14, 1914.

Rehearing Denied November 11, 1914.

Appeal from Harris County Court at Law; C. C. Wren, Judge.

Jacob Noodleman was convicted of crime, and he appeals. Affirmed.

Heidingsfelders, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was tried under an information containing two counts; one charging him with deserting his wife, and the second charging him with refusing to provide for and support his two minor children, Arthur and Lillie Noodleman, both of whom were under 16 years of age.

The evidence would clearly show that appellant had abandoned his wife before he came to Texas. His testimony and the testimony of his wife clearly show that fact, although they differ in many other material particulars. The abandonment of the wife having occurred in a foreign state, we doubt very much if a verdict could be sustained under that count in the information; but as the verdict is general it can be applied to the second count in the information, if the evidence will sustain a verdict under that count. It is the clear intention of the law that although the abandonment or desertion may have taken place at one place, yet if the wife and children reside in another county for six months, during which time the husband willfully refuses to support his children, and knowingly and voluntarily leaves them in destitute and necessitous circumstances, he may be prosecuted and convicted in the county in which the children and their mother have their residence, for the law provides:

"An offense under this act 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 next preceding the filing of the * * * information."

Appellant and his wife and children had all resided in Houston, Harris county, more than six months prior to the filing of the information in this case; therefore that county would have jurisdiction, even though the actual abandonment had taken place elsewhere, in so far as refusal to provide for the support and maintenance of his two minor children is concerned. In this case it appears that appellant had been residing in Harris county for several years, that his wife and children came to Harris county in the fall of 1912, and it is doubtless just such cases as this that induced the Legislature to make it a crime to refuse to support the abandoned children.

It is true that appellant could not be punished for failure to do so up to the time this law went into effect, July 1, 1913; but the prosecution was not begun until long after that date, and the evidence clearly shows that appellant, though able to do...