HAWKINS, JUDGE.-Conviction is for wife desertion; penalty $50 fine and thirty days in jail.

New trial was applied for on the ground, among others, of newly discovered evidence. The affidavit of the wife is attached, setting out what is claimed to be the evidence coming to appellant's knowledge since the trial, but the motion for new trial as it appears in the record is not sworn to either by counsel or accused. A motion for new trial not so sworn to, when the ground stated is newly discovered evidence, is entirely insufficient. (For authorities, see notes 7 and 9, under Article 840, Vernon's C. C. P.)

The information charged both wilful desertion, and failure to provide for the support and maintenance of the wife, who was alleged to have been in necessitous and destitute circumstances. Both were submitted to the jury, and a general verdict returned. The case was tried by counsel for accused on the theory that desertion was a necessary element of the offense, without which no criminal liability attached, even though neglect and refusal to provide for support and maintenance was shown. Many special charges were requested embracing this theory and exceptions properly reserved when refused. This question was decided adversely to such contention in No. 6404, O'Brien v. State, 90 Texas Crim. Rep., 276; (opinion delivered November 16, 1921, not yet reported); in which we held that a husband would be guilty under Article 640-A, Vernon's P. C., who wilfully or without justification deserted his wife who was in destitute or necessitous circumstances, and one would likewise be guilty who wilfully or without justification neglected or refused to provide for her support and maintenance when she was in destitute or necessitous circumstances. Article 640-C, read in connection with Article 640-A confirms us in the correctness of that conclusion. No error was committed by the court in declining to give the special charges.

A special charge refused was substantially to the effect that if the failure to support was because of illness or poverty on accused's part he should be acquitted. This charge should have been given. To our minds the evidence raised the issue. If appellant was physically unable to work, and provide for his wife, there would be an absence of wilfulness and the presence of justification, although his physical ailment may have been brought about by some other lapse of conjugal duty. Likewise, if poverty overtakes one it is a misfortune, but not a crime. In O'Brien's case, supra, it is said: "If the evidence should disclose a state of facts where the husband may not have actually deserted his wife, but continued to live with her, and yet wilfully or without justifications neglected or refused to provide for her support and maintenance when she was in destitute and necessitous circumstances, he being able to so support and provide for her, we can see no reason why under the law he might not be guilty of an offense." By the same reasoning then it would seem plain if he is not able to support and provide there would be no offense. Irving v. State,

73 Texas Crim. Rep., 615, 166 S. W. Rep., 1166; Reid v. State, 88 Texas Crim. Rep., 364, 229 S. W. Rep., 324.

For the error pointed out the judgment of the trial court is reversed, and the cause remanded.

Reversed and remanded.

WILL FRANCIS V. THE STATE.

No. 6493. Decided December 7, 1921.

Intoxicating Liquor-Possession-Repeal-Sale.

The Acts of the First and Second Called Session of the Thirty-Seventh Legislature, in effect, repealed that provision of the law making the possession of intoxicating liquor an offense, except for the purpose of sale. Following Cox recently decided and judgment is reversed and the cause dismissed.

Appeal from the District Court of Smith. Tried below before the Honorable J. R. Warren.

Appeal from a conviction of the possession of intoxicating liquor; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

Gentry & Gentry, for appellant.

R. G. Storey, Assistant Attorney General, for the State.

HAWKINS, JUDGE.-Appellant was convicted for having in his possession intoxicating liquor. The Acts of the First and Second Called Sessions of the Thirty-seventh Legislature, page 233, in effect, repealed that provision of the law making the possession an offense, and it is only where the possession is for the purpose of sale that the act is now denounced by the Legislature. Cox v. State, and other cases decided at the present term, but not yet reported.

It, therefore, becomes necessary for this court to reverse the judgment of the trial court and order the prosecution under the present indictment dismissed. Petit v. State, No. 6510, 336, decided November 23, 1921.

Reversed and dismissed.

}

KATE HUEY V. THE STATE.

No. 6521. Decided December 7, 1921.

Disorderly House-Statement of Facts-Questions and Answers.

Stenographer's notes in question and answer form do not comply with the law requiring a succinct statement of the facts, under Article 844-C, C. C. P. Following Ferguson v. State, 83 Texas Crim. Rep., 273, and other cases, and in the absence of a bill of exceptions, complaints of the charge of the court present no error and the judgment must be affirmed.

Appeal from the County Court At. Law No. 2, of Harris County. Tried below before the Honorable Roy F. Campbell.

Appeal from a conviction of keeping a disorderly house; penalty, a fine of $200, and confinement in the county jail for twenty days. The opinion states the case.

No brief on file for appellant.

R. G. Storey, Assistant Attorney General, for the State.

MORROW, PRESIDING JUDGE.-Conviction is for keeping a disorderly house; punishment fixed at a fine of $200 and confinement in the county jail for a period of twenty days.

We find no statement of facts. Copied in the record is the stenographer's notes in question and answer form. This does not comply with the law requiring a succinct statement of the facts. Code of Crim. Proc., Art. 844C. This court has so held on numerous occasions. Ferguson v. State, 83 Texas Crim. Rep., 273, and cases. therein cited; Mooney v. State, 73 Texas Crim. Rep., 122; Felder v. State, 59 Texas Crim. Rep., 144; Margrave v. State, 53 Texas Crim. Rep., 147; Fox v. State, 53 Texas Crim. Rep., 150.

In the absence of the statement of facts, the bills of exceptions complaining of the charge of the court present no error. No other bills are found.

The judgment is affirmed.

Affirmed.

EARL BELL V. THE STATE.

No. 6528. Decided December 7, 1921.

Perjury-Indictment-Materiality of Statement.

Where, upon trial of perjury, the motion to quash the indictment for the reason that there was a failure to aver that the alleged false statement

was material to the matter under investigation, the indictment revealed that the criticism was correct, the judgment must be reversed and the cause dismissed.

Appeal from the District Court of Comanche. Tried below before the Honorable J. R. McClellan.

Appeal from a conviction of perjury; penalty, two years imprisonment in the penitentiary.

The opinion states the case.

Hampton, Harris & Hampton, for appellant.—Cited cases in opin

ion.

R. G. Storey, Assistant Attorney General, for the State.

HAWKINS, JUDGE.-Conviction is for perjury. Penalty two years imprisonment in penitentiary.

Motion to quash the indictment was made for the reason, among others, that there was a failure to aver that the alleged false statement was material to the matter under investigation. The indictment reveals the justness of the criticism, and the Assistant Attorney General confesses error under authority of Bell v. State, 75 Texas Crim. Rep., 401, 171 S. W. Rep., 239; Scott v. State, 75 Texas Crim. Rep., 396, 171 S. W. Rep., 243; Adamson v. State, 90 Texas Crim Rep., 221 (No. 6425, opinion delivered November 2, 1921, not yet reported); Highshaw v. State, 90 Texas Crim. Rep., 200 (opinion delivered October 26, 1921, not yet reported).

Judgment of the trial court is reversed, and prosecution ordered dismissed under the present indictment.

Reversed and dismissed.

W. F. SUDDATH V. THE STATE.

No. 6211. Decided December 7, 1921.

Murder Misconduct of Jury-Practice on Appeal.

Where, upon appeal from a conviction of murder, it appeared from the record that the jury while deliberating upon their verdict received evidence which was not before them during the progress of the trial, and that this influenced the verdict of the jury, the judgment must be reversed and the cause remanded. Following Gilbert v. State, 85 Texas Crim. Rep., 597, and other cases.

Appeal from the District Court of Clay. Tried below before the Honorable H. F. Weldon.

Appeal from a conviction of murder; penalty, five years imprisonment in the penitentiary.

90 T. C.-26

The opinion states the case.

R. E. Taylor and Chas. L. Black, for appellant. Cited cases in opinion.

R. G. Storey, Assistant Attorney General, for the State.

LATTIMORE, JUDGE.-Appellant was convicted in the District Court of Clay County of murder, and his punishment fixed at confinement in the penitentiary for a period of five years.

In our view but one question need be mentioned. In his motion for new trial appellant complained of misconduct on the part of the jury, in that while deliberating upon the case after their retirement they received evidence which was not before them during the progress of the trial. Upon the hearing of said motion the jurors who tried the case were before the court, and apparently without any contradiction all testified that while they were deliberating upon the case and before they reached their verdict, it was discussed by them, to a greater or less extent, that appellant had killed another man at a former time. One of the jurors who had not theretofore agreed to convict appellant of murder testified that he was influenced by said discussion and the fact that appellant had previously killed another man, to agree to a conviction for murder, whereas he had theretofore been for manslaughter. It also developed that a number of the jurors had never before heard of the fact mentioned.

This question has been before us in various forms and at many times, and, as made by the record before us, seems to have always been held reversible error. Our Assistant Attorney General confesses error upon this point, citing Gilbert v. State, 85 Texas Crim. Rep., 597, 215 S. W. Rep., 107; Luman v. State, 86 Texas Crim. Rep., 298; 216 S. W. Rep., 395; Lankster v. State, 43 Texas Crim Rep., 298, 65 S. W. Rep., 378; Hughes v. State, 43 Texas Crim. Rep., 511, 67 S. W. Rep., 104; Hughes v. State, 44 Texas Crim. Rep., 296, 70 S. W. Rep., 746; Clements v. State, 69 Texas Crim. Rep., 369, 153 S. W. Rep., 1137; Art. 837, subdivision 7, Vernon's C. C. P.

Because of the misconduct of the jury and its character, and the fact that in such case a new trial is made mandatory by the terms of Article 837 of Vernon's C. C. P., the judgment of the trial court will be reversed and the cause remanded for a new trial.

Reversed and remanded.