Burnett v. State (42 S.W.2d 1107, 1931)

HAWKINS, J.

Conviction was under the provisions of chapter 195, Acts Regular Session, 41st Legislature, which sought to amend article 602, P. C. 1925, making penal the act of deserting a wife or minor child; punishment was assessed at confinement in the county jail for six months.

The amended act referred to above has been held unconstitutional because of a defective caption. See Ex parte Heartsill (Tex. Cr. App.) 38 S.W.(2d) 803; Smith v. State (Tex. Cr. App.) 39 S.W.(2d) 53; McBrayer v. State (Tex. Cr. App.) 41 S.W.(2d) 245.

The prosecution proceeded in the district court as if it were a felony. The defect in the caption of the act in question was called to the trial court’s attention in the motion for new trial.

Under the authorities cited, the judgment must be reversed, and the cause remanded, and it is so ordered.