
    PATTON v. STATE.
    (No. 9715.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1926.)
    Husband and wife &wkey;3l3 — In prosecution for refusal to provide for wife, it must be shown that wife was in destitute or necessitous circumstances.
    To sustain conviction for refusal to provide for maintenance of wife, wife must be shown to have been in destitute or necessitous circumstances.
    Commissioners’ Decision.
    Appeal from Hardin County Court; T. F. Teel, Judge.
    ■ Newman Patton was convicted of refusal to support his wife, and he appeals.
    Reversed and remanded.
    B. A. Coe, of Kountze, and King & York, of Austin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is the willful 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 and six months in jail.

The evidence affirmatively show's that the wife of the appellant is not in destitute or necessitous circumstances, add 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 ease 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, 90 Tex. Cr. R. 276; Bobo v. State, 235 S. W. 878, 90 Tex. Cr. R. 397; Elms v. State, 270 S. W. 856, 99 Tex. Cr. R. 500; Otto v. State, 266 S. W. 787, 98 Tex. Cr. R. 549; Frank v. State (Tex. Cr. App.) 274 S. W. 573; Mercardo v. State, 218 S. W. 491, 86 Tex. Cr. R. 559, 8 A. L. R. 1312; Scciocca v. State, 271 S. W. 618, 99 Tex. Cr. R. 582; Ellis v. State (Tex. Cr. App.) 276 S. W. 703.

Because the evidence wholly fails to show1 that the wife alleged to have been deserted was in destitute or necessitous circumstances,. the judgment is reversed and the 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.  