
    WALL v. STATE.
    (No. 7082.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1922.)
    Parent and child <&wkey;17(6) — Evidence held insufficient to .sustain conviction for child desertion.
    In a prosecution for deserting and failure to maintain his minor child, where accused and wife were divorced two months prior to the alleged offense, evidence that out of the sale of their property he paid her §900 as her share and subsequently paid her $200 for the support of the child 7i eld insufficient to sustain conviction.
    Appeal from Harris County Court at Law; John W. Lewis, Judge.
    O. H. Wall was convicted of the desertion of a child 13 years old and failure to maintain it, and he appeals.
    Reversed and remanded.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The prosecution is for violation of article 640a, P. C., and charges the desertion of a child 13 years of age and failure to maintain it.

The facts show that some two months prior to the date upon which the offense is laid the appellant and his wife were divorced; that later they sold some property by agreement, and the wife received $900. She was awarded the custody of the child and appellant turned over to her $á00 of his part of the proceeds of the sale. This was undisputed, and we understand she still possesses the money. The wife said that she did not know why he gave her the extra money. He testified that he gave it to her for the support of the child, and that he regarded that as sufficient to support her for the time that had intervened between the time of the divorce and the time of the offense. We find nothing to the contrary. In the divorce proceedings the custody of the child was awarded to its mother. We think the evidence is entirely inadequate to sustain the averment that “appellant willfully refused to provide maintenance for his child, then and there in destitute circumstances.” Among the illustrative cases are Joiner v. State, 81 Tex. Cr. R. 524, 196 S. W. 523; Dickey v. State, 82 Tex. Cr. R. 154, 198 S. W. 309; Lamm v. State, 85 Tex. Cr. R. 48, 210 S. W. 209; Mercardo v. State, 86 Tex. Cr. R. 559, 218 S. W. 491, 8 A. L. R. 1312; Perry v. State, 87 Tex. Cr. R. 226, 220 S. W. 549; Hood v. State, 87 Tex. Cr. R. 222, 220 S. W. 550; Flowers v. State, 87 Tex. Cr. R. 293, 221 S. W. 289; Hollien v. State, 87 Tex. Cr. R. 645, 224 S. W. 779; Mikeska v. State, 88 Tex. Cr. R. 504, 228 S. W. 235.

The judgment is reversed, and the cause remanded. 
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