
    CASTELLON v. STATE.
    (No. 9632.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1926.
    Rehearing Denied Peb. 17, 1926.)
    1. Criminal law <§=>i 159(3) — Court of Criminal Appeals is unauthorized to interfere with findings of trial court on conflicting evidence.
    Court of Criminal Appeals is unauthorized to interfere with findings of trial court on question of sufficiency of evidence to warrant conviction when evidence on such issue is conflicting.
    On Motion for Rehearing.
    2. Husband and wife <§==>313 — Parent and child <@=?I7(6) — Evidence held to support conviction for abandonment, neglect, and refusal to support wife and minor child.
    Evidence Met sufficient to support conviction for abandonment, neglect, and refusal to provide for support and maintenance of wife and minor child.
    Commissioners’ Decision.
    Appeal from Bexar County Court for Criminal Cases; George G. Clifton, Judge.
    Eugenio Castellón was convicted of abandonment, neglect, and refusal to provide for his wife and minor child, and he appeals.
    Affirmed.
    T. B. Monroe, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was charged by complaint and information in the county court of Bexar county for criminal cases with abandonment, neglect, and refusal .to provide for the support and maintenance of his wife and minor child, and was convicted and his punishment assessed at a $50 fine and 30 days in jail. The record discloses that the appellant waived a jury and submitted this ease to the county judge, who, after hearing the testimony, assessed the fine and punishment as above stated.

There is only one question in the case for our consideration, and that is the sufficiency of the testimony to warrant' a conviction. The evidence on this issue was conflicting, and the trial judge, who heard the testimony, ruled against the appellant’s contention in this particular, and we are unauthorized under the law in such instances to interfere with the findings of the court thereon. Finding no error in the record, the judgment of the trial court is accordingly affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion .for Rehearing.

MORROW, P. J.

According to the appellant’s testimony, he and his wife separated in December, 1922. She left his home, took her infant, and went to that of her father, where she has since resided. In January, 1923, he filed suit for divorce, which had never been disposed of. Por a while after the suit was filed, he paid alimony to his wife at the rate of $5 per week for part of the time and $3 a week for the balance. It seems, however, that this ceased, and that prosecution was established and conviction took place in July, 1924. Since that time, according to the appellant, he had contributed on an average of $1.50 per week in the way of groceries and supplies to his child. Appellant resided with his father, who was a farmer. He also worked for his father, receiving wages averaging from $20 to $30 per month, in addition to his board and lodging/. He had incurred some expense on account of medical treatment to one of his ears.

The testimony given by the appellant’s wife and her father was such as to warrant the jury in concluding that the separation was due to the fault of the appellant in failing to provide for his wife and child; that since July, 1924, he-had made no contribution to her support and no real contribution to the support of the child, though he had, at intervals of about 2 weeks, given to the child some candy, sardines, crackers, etc.; that the wife and child were in need of clothing and were dependent for their food and shelter upon the bounty of the father of the wife.

The jury was warranted in finding that the appellant was an able-bodied man; that he was capable of earning money and that he did in fact earn money; that he had willfully refrained from contributing to the support of his wife and child. We are not prepared to say that the circumstances were such as to warrant this court in holding that the judgment of conviction is not supported by the evidence. Sbe Matthews v. State, 209 S. W. 660, 84 Tex. Cr. R. 623; Rausch v. State, 246 S. W. 1037, 93 Tex. Cr. R. 211; Williams v State, 232 S. W. 507, 89 Tex. Cr. R. 561; Curd v. State, 217 S. W. 1043, 86 Tex. Cr. R. 553; Wilkerson v. State, 263 S. W. 924, 98 Tex. Cr. R. 118.

The motion for rehearing is overruled. 
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