Sackhiem v. State

• Decision Date: 18 October 1922
• Docket Number: (No. 7132.)
• Citation: 244 S.W. 377
• Parties: SACKHIEM v. STATE.
• Court: Texas Court of Criminal Appeals

244 S.W. 377

SACKHIEM v. STATE.

(No. 7132.)

Court of Criminal Appeals of Texas.

October 18, 1922.

Appeal from Harris County Court, at Law; Murray B. Jones, Judge.

George Sackhiem was convicted of child desertion, and he appeals. Judgment set aside, and cause remanded.

Stevens & Stevens and A. E. Dawes, all of Houston, for appellant.

LATTIMORE, J.

Appellant was convicted in the county court at law of Harris county, Tex., of the offense of child desertion, and his punishment fixed at a fine of $100 and six months confinement in the county jail.

On February 15, 1922, appellant was convicted of deserting his children. From this judgment he appealed, and the appeal is now pending, so far as we are informed. On March 2, 1922, another complaint was filed against him for the same offense. This complaint is the basis of the prosecution in the instant case. The charge laid was the desertion of the same children. When the instant case was called for trial appellant presented a plea of former conviction based on the facts we have above stated, and alleging that he had already been convicted for the same transaction and offense for which he was now being prosecuted. We do not consider or discuss the various bills of exception and the objections raised to the different phases of this question, as presented in the record before us, for the reason that a conviction appealed from and the appeal pending at the time of a subsequent prosecution and trial will not support a plea of former conviction, however just and pertinent the plea otherwise. Dupree v. State, 56 Tex. Cr. R. 562, 120 S. W. 871, 23 L. R. A. (N. S.) 596, 133 Am. St. Rep. 998; Harvey v. State, 57 Tex. Cr. R. 5, 121 S. W. 501, 136 Am. St. Rep. 971; Bosley v. State, 69 Tex. Cr. R. 100, 153 S. W. 878; Phillips v. State, 73 Tex. Cr. R. 317, 164 S. W. 1004. It is indicated in these authorities that in such case one desiring to avail himself of a prior conviction as a bar to the instant prosecution should pursue a different course from the filing of a plea of former conviction when an appeal is pending.

Appellant is a Jew, the father of seven children; the oldest, a girl, self-supporting, lived in Virginia; three boys who lived with their father; two girls, 11 and 13, being the children alleged to be deserted in this prosecution; the youngest child, which is shown to be with its mother in Baltimore, Md. Appellant's business was that of a peddler, a mender and vender of old watches, clocks, etc. The family seems to have been broken up in 1918. The record discloses that at that time the mother went with the president of the Jewish United Charities to an institution known in this record as the Faith Home, and there placed the three youngest girls of the family. The terms, agreements, and understandings that formed this arrangement do not appear in the record. Appellant's attitude in and toward said arrangement is not shown. The mother then went to Baltimore, Md., where she now is. There appears little dispute over any of the facts contained in the record. Some time after going to Baltimore the mother desired that the smallest girl be sent to her, but the authorities of the Faith Home declined to turn said child over to appellant for any purpose until the mother herself wrote them a letter authorizing them to do so. The two children in question here, alleged to have been deserted by appellant, have been in the Faith Home continuously from 1918. That they were well fed, clothed, and taught while there is proven ,and not denied. It was in evidence that the Jewish United Charities was a large contributor to said home. Appellant's ability to support his family, and especially the two little girls in the Faith Home, was not shown by the state. His own testimony was that he lived in a rented three-room house with his three minor sons, two of whom worked, and the other of whom went to school, and that he had no means to employ a housekeeper to take care of the house and the said two little girls. He testified that he did the cooking for himself and the boys. He also swore that he had tried to send his wife $75 per month since she had been away, and that this took all he and the boys could spare from their own living. The authorities of the Faith Home said that when children were placed with them they kept them until they were 12 or 14 years of age. Both of appellant's said daughters were under that age at the time this prosecution was begun. We are of opinion that this is a sufficient statement of the facts.

A special charge was asked by the...