
    FRANK v. STATE.
    (No. 9323.)
    (Court of Criminal Appeals of Texas.
    June 17, 1925.)
    Husband and wife. @=*313 — Parent and child 17 (6) — Evidence held not to show destitute and necessitous circumstances.
    In prosecution for husband’s abandonment of wife and minor child,- evidence ⅞eld not to show that wife was destitute and in necessitous circumstances.
    Commissioners’ Decision.
    Appeal from Austin County Court; W. I. Hill, Judge.
    Julius Frank was convicted for deserting his wife and 'minor child, and he appeals.
    Reversed and remanded.
    Krueger & Duncan, of Bellville, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the county court of Austin county for‘the offense of deserting his wife and minor child, and neglecting and refusing to provide support and maintenance for them, and his punishment assessed at a fine of $100.

There are many bills of exception in tbe record, but, under tbe view we take of tbe case, it is not necessary to consider them.

We tbink tbe state’s testimony clearly fails to show that, at tbe time of tbe alleged desertion, or at any time since tbe desertion, tbe wife and child were in' destitute circumstances ; instead, we think that tbe testimony of tbe alleged, deserted wife clearly shows tbe contrary. Her testimony shows that she was married to the appellant in January, 1922, and that a child was bornto her in April 1922; that, at tbe time of her marriage, she ■was a widow with a 15 year old son; that she and her baby received tbe benefit of her son’s wages and used them for her support; and that her son makes $4.50 a week and in addition to that all the meat they could use at home, and that be also receives bis own' board from bis employer. Tbe testimony further shows that the wife owns her home in Bellvile, Tex., consisting of about 2½ acres of land, and that she gets $2 a month water rent, has a garden, and raises vegetables, and that she has a cow and plenty of milk and butter, and that she also has plenty of chickens and eggs. Under these circumstances, we cannot do otherwise than bold that she is not shown to be in destitute and necessitous circumstances.

While it is possibly not germane, it may be well to.state that appellant is shown by tbe testimony to be living with and supporting his five children by a former marriage.

Because tbe evidence is insufficient to support tbe verdict, it is our opinion that tbe judgment should be reversed and tbe cause remanded.

PER CURIAM.

The foregoing opinion of tbe Commission of Appeals has -been examined by tbe judges of tbe Court of Criminal Appeals, and approved by tbe court. 
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