
    WINDHAM v. STATE.
    (No. 4363.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1917.)
    Husband and Wife &wkey;>313 — Wife Desertion — Elements of Offense.
    Under Vernon’s Ann. Pen. Code 1916, art. 640a, to prove the offense of wife desertion as therein defined, the state must show that accused, not only willfully and without justification deserted his wife and refused to support her, but must also show that she was in destitute and necessitous circumstances.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110.]
    Appeal from Nacogdoches County Court; Jno. F. Perritte, Judge.
    Willis Windham was convicted of wife desertion under Vernon’s Ann. Pen. Code 1916, art. 640a, and he appeals.
    Reversed and remanded.
    Harris & Harris, of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted under article 640a, Vernon’s Ann. P. 0., for willful desertion, etc., of his wife without justification and failure to support and maintain her; she being in destitute or necessitous circumstances.

Appellant has assigned several matters which he claims were errors against him on the trial. One of them presents reversible error, which, is that the evidence was insufficient to sustain the conviction. We have carefully read the evidence. Without specifically so holding, in view of another trial, the evidence may be sufficient to show a willful desertion of her, and a' refusal or failure to support and maintain her, but the evidence, we think, is wholly lacking to prove that she was in destitute or necessitous circumstances. Under this statute he must not only wilh fully and without justification desert his wife and neglect or refuse to support and maintain her, but the state must go further and prove that she was in destitute or necessitous circumstances as well. As the evidence, in our opinion, fails to show that she was in destitute or necessitous circumstances, the conviction cannot be sustained.

The judgment is reversed, and the cause remanded.  