
    BENNETT v. STATE.
    (No. 11375.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    1. Husband and wife <§=>304 — Even if wife’s dissatisfaction with husband’s provision for family warranted separation, failure better to provide would not necessarily be criminal' (Pen. Codte 1925, art. 602).
    Even if wife’s dissatisfaction with manner in which husband was providing for family was just and warranted separation, failure to provide better would not necessarily constitute criminal offense, under Pen. Code 1925, art. 602.
    2. Husband and wife <§=>302 — Statute denounces “willfully” failing to provide for wife or minor children, not absence of ability to provide (Pen. Code 1925, art. 602).
    Pen. Code 1925, art. 602, does not denounce husband and father’s absence of ability to maintain wife or minor children, but “willfully” failing to maintain them, which means with evil intent, with legal malice, or without reasonable ground for believing act in question to be lawful.
    [Ed. Note. — For other definitions, see "Words and Phrases, First and Second Series, Willful— Willfully.] '
    3⅛ Husband and wife <§=>313 — Burden is on state to show husband and father’s failure to provide for wife and children is willful (Pen. Code 1925, art. 602).
    In prosecution under Pen. Code 1925, art. 602, for failure by husband and father to provide for wife or minor children, state has burden to prove that such neglect was willful. •
    4. Husband and wife <§=>313 — Evidence showing only lack of ability to provide for wife and minor children does not justify conviction for willful failure to provide (Pen. Code 1925, art. 602).
    State’s evidence showing only lack of ability of husband and father to provide for wife and minor children does not justify conviction, under Pen. Code 1925, art. 602, denouncing willful failure to provide.
    5. Husband and wife <§=>313 — Evidence of willful failure to provide held insufficient to support conviction for wife and child desertion (Pen. Code 1925, art. 602).
    Evidence of willful failuré of husband and father to provide held insufficient to sustain conviction for wife and child desertion, under Pen. Code 1925, art. 602.
    Appeal from County Court at Law, Harris County; Ben F. Wilson, Judge.
    
      Frank Bennett was convicted of wife and child desertion, and he appeals.
    Reversed.
    A. Ij. Shaw, of Beaumont, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Wife and child desertion is the offense; punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days.

The offense is.thus defined:'

“Any husband who shall willfully desert, neglect or refuse to provide for the support and maintenance of his wife who may be in destitute or necessitous circumstances, or any parent who shall willfully desert, neglect or refuse to provide for the support and maintenance of his or her child or children under sixteen years in destitute or necessitous circumstances, shall be fined not less than twenty-five nor more than five hundred dollars or be imprisoned in jail not more than one year, or both.” Article 602, P. O. 1925.

The evidence in the case consists of the testimony of Anna Bennett, wife of the appellant. She testified that the marriage took place in 1920; that there were two children; and that the birth of another was expected. In February, 1927, the prosecutrix, because of sickness, went to a hospital, and upon leaving there, went to the home of her mother. Prior to that time she and the appellant had lived together in the city of Houston, and he lived there at the time of her leaving. It is apparent from the testimony that the cause of her leaving her husband was his failure to earn sufficient money to maintain the family in the manner desired. He was a carpenter and when engaged, which was only part of the time, his earnings amounted to $85 per month. From her testimony we quote:

“I left and went to my mother’s because I was not able to work, and did no! have anybody to work, and he did not make .money enough to get somebody to do the work for me.”

She said that there was food provided, but not of the kind suitable for her condition; that he did not give her clothes because he did not have any money; that the children were clothed, but received their clothing from his mother; that the appellant had credit with the grocer, but did not pay promptly. She also said:

“When I went to my mother’s, I took the children with me. He took us there. He wanted me to stay at home. He said he would get a nurse to take care of me, but he did not have ‘ the money. I knew he did not have the money. I said: ‘Mamma, can take care of me, and it won’t cost us anything, and I want to go there because I know she knows what to do.’ ”

Soon after the marriage they purchased on credit a lot and built a small home on it. They bought household goods on the installment plan, but the payments were not kept up, and the furniture had to go back. When she asked him for money for the children, he said he had none, but later gave her $24.

We learn from her testimony that after she had remained in her mother’s home for a time, they divided their property and lived apart; that on the 14th day of March, 1927, she instituted suit for divorce. The indictment was returned the following day.

The court submitted to the jury the several charges embraced in the indictment; that is, the willful neglect of the wife and each of the children, and the verdict was responsive to that charge. It would seem from the evidence that there is little justification for the claim that the appellant’s acts towards his wife were criminal. From her testimony, the separation was due to her dissatisfaction with the manner .in which her husband was able to maintain her. Her dissatisfaction may have been just and warranted separation, but it would not follow that his failure to better provide for his family was criminal. It is the willful neglect that is denounced by the law. “Willfully” means with evil intent, with legal malice,' or without reasonable ground for believing the act to be lawful. Branch’s Ann. Tex. P. O. ■§ 2205; Thomas v. State, 14 Tex. App. 204; Henderson v. State, 53 Tex. Cr. R. 533, 111 S. W. 736. It is not the absence of ability to maintain those dependent upon him, but the neglect must be willful and without justification, which the law denounces. See Smith v. State, 97 Tex. Cr. R. 565, 263 S. W. 913; Morgan v. State (Tex. Cr. App.) 300 S. W. 49; Prock v. State, 92 Tex. Cr. R. 494, 244 S. W. 609. The burden is upon the state to show the neglect to be willful. Elms v. State, 99 Tex. Cr. R. 500, 270 S. W. 856. If it goes no further than to show, a lack of ability, the burden is not discharged. See Elms v. State, supra; In the present instance, it seems manifest that there is such dearth of evidence tending to show that the appellant was willfully neglectful that the verdict of conviction should not be permitted to stand. The reversal of the judgment is therefore ordered. 
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