
    GOSTICK v. STATE.
    (No. 11836.)
    Court of Criminal Appeals of Texas.
    June 13, 1928.
    1. Parent and child <@=»17(6) — Evidence held insufficient to sustain conviction for willfully deserting and refusing to support minor child in exclusive custody of defendant’s divorced wife; “willful” (Pen. Code 1925, art. 602).
    Evidence held insufficient to sustain conviction for willfully deserting, neglecting, and refusing to provide for support and maintenance of defendant’s minor child, awarded by divorce decree to exclusive custody of defendant’s wife, where child was not in destitute and necessitous circumstances, within Pen. Code 1925, art. 602; word “willful” as used in statute, meaning not only with evil intent and malice, but also implying a set purpose and design.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Willful— Willfully.]
    2.- Contracts <§=>128(1) — Contract promising payment in consideration of dismissal of criminal prosecution, and prosecution to enforce it, are not commended.
    Contract which on its face shows a promise to pay money in consideration of the dismissal of a pending criminal prosecution, and prosecution instituted to enforce such a contract, are not to be commended.
    3. Parent and child @=^17(2)— Minor child having been awarded to exclusive custody of wife by divorce decree,'husband could not be guilty of “willful desertion” of child (Pen. Code 1925, art. 602).
    Where divorce decree awarded custody of minor child to wife, who at time involved had custody of child to' the exclusion of divorced husband, latter could not be guilty of offense of willful desertion of child, within Pen. Code 1925, art. 602.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Willful Desertion.]
    
      Commissioners’ Decision.
    Appeal from Harris County Court at Law; Ben E.' Wilson, Judge.
    John W. Gostick was convicted of willfully deserting, neglecting, and refusing to provide for the support and maintenance of his minor child, and he appeals.
    Reversed and remanded.
    John L. Meany, of Houston, for appellant.
    A. A. Dawson, State’s Atty.,‘ of Austin, for the State.
   MARTIN, J.

Complaint and information were filed against appellant charging him with willfully deserting, neglecting, and refusing to provide for the support and maintenance of his minor child. The penalty assessed was a fine of $25.

The sufficiency of the evidence to support the conviction is vigorously assailed. Mrs. Annie Clark, former wife of appellant, was the prosecuting witness. She testified, in substance, that she married appellant on the 5th day of May, 1914, and the child in question was born in August, 1914; that she lived with appellant until the child was eleven months old and afterwards got a decree of divorce from him in May, 1917, with the custody of the minor child. She thereafter married Paul Klopp and after about three years divorced him and married Walter Stein. She lived with him eight months and divorced him and married August Clark, who is husband No. 4. After appellant’s return from the army prosecutrix apparently became dissatisfied and angered at appellant over the disposition of money coming to his dependents from the government and instituted a child desertion prosecution against him. This prosecution was apparently dismissed by reason of a contract, which appears in the record, a part of which is as ' follows:

“⅜ * * In consideration of no further prosecution of me for nonsupport of my child, Lelia Ruth Gostick, I agree to pay to my former wife, Annie Ruby Klopp, the sum of $5.00 per week for the support, care and maintenance of said child, notwithstanding the fact that the court has awarded the care and custody of said child to her.”

It seems about this time appellant himself sued for the custody of the child, but it was again awarded to prosecuting witness, and she had such custody to the exclusion of appellant when the instant case was tried. The testimony further developed that prosecuting witness had accumulated considerable property. She had not long prior to the trial been in possession of $4,600 in cash. She. owned furniture which she said cost her $3,-000. She had a car. She had some income from rental of rooms. Her husband was wprking regularly and contibuted to her support. She testified:

“If my present husband did not give me anything to support the little girl on, she would be in destitute and necessitous circumstances.”

The child herself testified:

“I go to school. * * * I live in a nice house; have plenty to eat, plenty of clothes to wear, plenty of shoes, and everything. My mother buys those for me.”

Appellant’s testimony was that he has a wife and two children to support; that he is a day laborer an£ makes from $23 to $37 a week; that he has very little property; that, since he signed the contract above mentioned, he had paid to prosecuting witness an aggregate of nearly $2,000; and the testimony further showed that, at the time the prosecution was instituted, he was behind with such payments less than two months; that he at such time had just had severe sickness in his family. 1-Ie further testified that he would be glad to have the care and custody of his child and would divide whatever he had between it and his other two children.

We will not pause to discuss some of the rather remarkable testimony found in this record further than to say that it raises more than a suspicion that prosecuting witness considers herself the plaintiff in a prosecution instituted to enforce a contract which on its face shows a promise to pay money in consideration of the dismissal óf a pending criminal prosecution. It ought to be evident that such a contract and such a prosecution are not to be commended. The evidence shows that prosecuting witness has accumulated more and had more property on the date of the offense than appellant. The recited facts show, that the child in question was not in destitute and necessitous circumstances as those terms are used in Penal Code, art. 602, and, this being an indispensable element, the evidence in our opinion is insufficient. Patton v. State, 103 Tex. Cr. R. 135, 280 S. W. 584; Frank v. State, 101 Tex. Cr. R. 121, 274 S. W. 573; Sims v. State, 91 Tex. Cr. R. 469, 239 S. W. 974.

Prosecuting witness having obtained by judicial decree the custody of the child in question and holding same at the time of the alleged commission of the offense to the exclusion of appellant, there could be no such offense as willful desertion by appellant in this case. Freeman v. State, 103 Tex. Cr. R. 428, 280 S. W. 1069.

We further seriously doubt whether this record shows a willful neglect or refusal to provide for the child in question. “Willful,” as used in the statute, means not only with evil intent and 'malice, but it also implies a set purpose and design. Mercardo v. State, 86 Tex. Cr. R. 560, 218 S. W. 491, 8 A. L. R. 1312. In view of the sickness in appellant’s family and the meager salary which he, was drawing about this time and the obligations which he had to meet, we believe the evidence hardly sufficient on this phase of the case, in addition to the one previously discussed.

Because the evidence is insufficient, the judgment of the trial court is reversed, and cause remanded.

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 
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