
    Newman Patton v. The State.
    No. 9715.
    Delivered February 10, 1926.
    Failure to Support Wife — Evidence—Held, Insufficient.
    Where, on a trial for the wilful desertion, neglect and refusal to provide for the maintenance and support of appellant’s wife, who it was alleged was in destitute and necessitous circumstances, and the evidence affirmatively shows that the wife is not in destitute or necessitous circumstances, the judgment must be reversed. It is necessary in a case of this character to show that his wife is in destitute or necessitous circumstances before a conviction will be sustained. Following O’Brien v. State, 234 S. W. 668 and other cases cited.
    Appeal from the County Court of Hardin County. Tried below before the Hon. T. F. Teel, Judge.
    Appeal from a conviction for failure to support and maintain wife, penalty a fine of §25.00 and six months in jail.
    The opinion states the case.
    
      B. A. Coe of Kountze, and King & York of Austin, for appellant.
    
      Sam D. Stinson, State’s Attorney, and Nat Gentry, Jr., Assistant State’s Attorney, for the State.
   BERRY, Judge.

The offense is the wilful desertion, neglect and refusal to provide for the maintenance and support of appellant’s wife whom it is alleged was then and there in destitute and necessitous circumstances. The punishment is a fine of §25.00 and six' months in jail.

The evidence affirmatively shows that the wife of the appellant is not in destitute or necessitous circumstances, and it affirmatively shows that she has never been in destitute or necessitous circumstances. The testimony wholly fails to meet the allegation with reference to this matter. It is necessary in a case of this character to show that the wife is in destitute or necessitous circumstances before a conviction will be sustained. O’Brien v. State, 234 S. W. 668; Bobo v. State, 235 S. W. 878; Elm v. State, 270 S. W. 856; Otto v. State, 266 S. W. 787; Frank v. State, 274 S. W. 573; Mercado v. State, 218 S. W. 491; Sciocca v. State, 271 S. W. 618; Ellis v. State, 276 S. W. 703.

Because the evidence wholly fails to show that the wife alleged to have been deserted was in destitute or necessitous circumstances the judgment is reversed and the cause remanded.

Reversed and remanded.

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.  