
    SIMS v. STATE.
    (No. 6872.)
    (Court of Criminal Appeals of Texas.
    April 12, 1922.)
    1. Criminal law <@=1099(6) — Statement of facts in county court filed within 90 days after adjournment is timely.
    Under Yernon’s Code Or. Proc. 1916, art. 845, a statement of facts in a misdemeanor case originating in the county court filed within 90 days after the adjournment of the court was filed in time, notwithstanding article 844a.
    2. Parent and child <⅞= 17(6)— Conviction for desertion of child held not supported by the evidence.
    Where, in a prosecution for child desertion, accused’s wife testified that she refused to live with accused on his offer to support herself and the child and that she was unwilling to live with him except on condition that he let her be independent, a conviction as for a willful desertion was without support in the evidence.
    Appeal from Tarrant County Court, at Uaw; I\ W. Seward, Judge.
    W. A. Sims was convicted of child desertion, and he appeals.
    Reversed and remanded.
    John L. Poulter, of Fort Worth, for appellant.
    Jesse M. Brown, Or. Dist. Atty., of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the- State.
   LATTIMORE, J.

Appellant was convicted in the county court of Tarrant county of the offense of child desertion, and his punishment fixed at a fine of $25.

The state contends that appellant’s statement of facts was filed too late in the instant case, and moves to strike out same. Reference is made in the state’s motion to article 844a, Vernon’s .0. C. P. In Gribble v. State (Tex. Cr. App.) 210 S. W. 215, 3 A. L. R. 1096, we reviewed at length the authorities pertinent to this question and arrived at the 'conclusion that under article 845, Vernon’s C. C. P., which was an act of the Legislature in 1909, a statement of facts in a case originating in the county court, which was filed within 90 days after the adjournment of such court, was filed within the time fixed by statute. The motion of the state must therefore be denied. *

We deem it necessary to discuss only the sufficiency of the facts. The wife of appellant testified that she and appellant lived together until about a year prior to the trial, that their child was about 2½ years old, and was the child for the desertion of whiqh this conviction was had. Said witness testified that she earned $12 per week, and that her mother lived with her and took care of said child. She further testified as follows:

“Mr. Sims has made repeated efforts to get me to come back and live with him as his wife, and has offered to support me and take care of me and the baby, and I refused to do so, and still refuse to do so, and have also refused to permit him to have the baby. I don’t think a man like him ought to ask to even see it; but I do want him to furnish me money. I will spend all the money he will furnish for the baby. My proposition is for him to let me be independent and raise the baby, and his proposition is for me to give him a divorce, and he offered to give me $50 a month up until the baby got his teeth, but the baby has not finished cutting his teeth yet, and he has not lived up to his part of the contract. I would live with him now on one condition, that is, to let me be independent. He has not bought me any clothes in the last three years. I was satisfied with what he was giving me until he stopped. Mr. Sims has offered to take the baby and put it with his mother, and I refused to let him do it. So he could see it once in a while.”

There is nothing in the record in any wise controverting this testimony of the mother of the alleged deserted child. Under these facts, it must be manifest that the verdict of conviction is not only unsupported by testimony, but is directly against the weight thereof. Mrs. Sims testified positively that appellant offered to take the child and take care of it and that she refused to let him do it. She said that he had offered to come back to her and live with her as his wife and support both her and the child, but that she had refused and still refuses to do this, and refuses to permit him to have the baby. This is an unfortunate state of affairs, but this court can only declare the law as it sees same and as applicable to facts made by the testimony in a given case before it. The gist^of the offense charged against appellant lies in his willful desertion of his child, or his willful neglect of it, or his willful refusal to provide for the support and maintenance of said child. That in an unfortunate controversy over any child one party to the marital copartnership should demand that the care, custody, and control of the child should be yielded by the other, would seem to carry with it an assertion of willingness to support and maintain said child. Mrs. Sims having announced her refusal to permit appellant to take said child and provide for it, and having accompanied this with the further statement that she herself was unwilling to live with him and permit him to support herself and the child, would seem to put the situation in such attitude as that this court must hold that the action of appellant in not supporting the child lacks the essential feature of being willful and without justification.

So concluding, the judgment of the trial court will be reversed, and the cause remanded. 
      <§m»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     