#### The People of the State of Illinois, Defendant in Error, v. Owen L. Seed, Plaintiff in Error.

(Not to be reported in full.)

Error to the County Court of McLean county; the Hon. James C. Riley, Judge, presiding. Heard in this court at the April term, 1916.

Reversed.

Opinion filed October 13, 1916.

Statement of the Case. ,

Prosecution by the People of the State of Illinois, plaintiff, against Owen L. Seed, defendant, for wife abandonment. To review a judgment against him., the defendant prosecutes a writ of error.

Walker B. Flint and Sterling & Whitmore, for plaintiff in error.

Miles K. Young and W. B. Leach, for defendant in error.

Abstract of the Decision.

1. Husband and wife, § 274 * —what proof necessary to warrant conviction of wife abandonment. In order to warrant a conviction *487for wife abandonment, the proof must show such a state of facts as would, if they continued for the period of two years, warrant the granting of a divorce to the wife on the ground of desertion.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*486Mr. Justice Graves

delivered the opinion of the court.

*4872. Husband and wife, § 273 * —what is a defense to prosecution for wife abandonment. If the separation of husband and wife is due to the desertion of the husband by the wife, or if it is by mutual agreement of the parties, the husband cannot be held amenable to the criminal law or be held guilty of desertion.

3. Husband and wife, § 274*—when evidence insufficient to justify conviction for wife abandonment. On a prosecution for wife abandonment, evidence showing, among other things, that the defendant, a traveling insurance solicitor, leased and maintained a house after his wife had gone to visit her relatives, and told her that when she was ready to come home he would come after her, that after several months, on the wife’s not returning, he surrendered the lease and the wife stated on the witness stand that if the defendant had done what was right she would have been willing to live with him, held not to justify a conviction.