
    FLOWERS v. STATE.
    (No. 5819.)
    (Court of Criminal Appeals of Texas.
    May 5, 1920.)
    Parent and child <@=»I7(6) — Evidence held insufficient to support conviction for abandonment of child.
    Evidence held insufficient to sustain conviction for unlawfully, willfully, and without justification abandoning, neglecting and refusing to provide for the support and maintenance of minor children under 16 years of age in destitute and necessitous circumstances.
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    R. L. Flowers was convicted of unlawfully, willfully, and without justification abandoning, neglecting, and refusing to provide for the support and maintenance of minor children in destitute and necessitous circumstances, and he appeals.
    Reversed and remanded.
    Joe H. H. Graham, of San Antonio, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of unlawfully, willfully, and without justification abandoning, neglecting, and refusing to provide for the support and maintenance of his two minor children, who were alleged to be in destitute and necessitous circumstances, and being under the age of 16 years.

The record is rather voluminous in detailing the testimony. The substance of the evidence, however, shows that appellant and his wife had been married for about 25 years. Among other children there were three at home, two hoys and a girl. One boy had at the time of this trial reached his majority. The second boy, alleged to be under 16 years of age, was attending school, and the daughter, 14 years of age, was employed in Joske’s establishment in San Antonio. Appellant and his wife had not been getting along very comfortably, and there had been disagreement between them. On the night of the 15th of October he came home, and trouble ensued. He was notified that notice had been sent to the house they were occupying that the rent was due, and proceedings had been instituted to remove them. There was about two months’ rent due at $30 a month. Among them they were enabled to raise $56 with which to pay the rent. He went off with this amount and returned and informed his wife and family that the agent or landlord would not accept the money unless they had the full amount of $60. Various and sundry instances and acts occurred with reference to the matter, and the wife wanted the money returned to her, and he did give her some of it. They differed as to the amount, she claiming he only gave her $7 and he stated he gavé her $20. During their troubles the older boy struck his father. Some of the testimony shows he knocked him down. The old man went away to his relatives, and the testimony indicates may have returned and slept at home that night. The testimony shows, however, that two nights he slept away from home after this trouble on the ground that he was afraid to go back, that his family was displeased with him and he was afraid of further trouble, and that if he stayed aw'ay a little while perhaps things would calm down and the trouble pass. When he did return he found his house vacant and his wife and children and furniture and everything gone. He finally located them on a different street. In a day or two he paid the rent due on the house his wife had vacated and continued to remain in the house. Therg was a discussion as to a prosecution of appellant for desertion of his wife and children. This reached the county attorney’s office, and he advised that such prosecution would not. lie, as they had deserted him. Later this prosecution was instituted against appellant for neglecting to support and provide for the two children on the ground that they were in destitute and in necessitous circumstances. Appellant was a carpenter. Up to the time of their separation he had provided for his family, and, among other things, he ‘'run” an account at a grocery store, and his wife and children bought groceries at this store at any time they desired without previously asking him, and he had authorized such acts, and paid the bills. The groceryman testified to the same effect. After his wife and children-left appellant and went to another residence they discontinued going to the grocery store, though had they gone they would have been furnished with groceries. This phase of the testimony seems not to have been controverted. During the months of October, November, and December, which covers the time between their leaving appellant and the trial of this case, he had been earning about $50 or $60 a month. Ordinarily he would have earned over $100 a month. The reason why he was not obtaining the full amount of pay as carpenter lay in the fact that rain had stopped a great deal of building and caused his being laid' off. The money that he did earn is shown to have been paid out for rents, telephone bills, light, water, etc., and it kept him pressed financially on account of the fact that he could not obtain work all the time.

With reference to the financial condition that environed his wife and children, it is shown that the oldest boy was making $15 a week, which he turned over to the support of the family, that a son-in-law contributed about $75 to $100 to the support of the children, and that the daughter who worked at Joske’s was getting $8 a week, or $32 a month. The mother of the children and wife of appellant testified this girl used this $32 a month on her apparel, dresses, etc. It is also shown this girl had been employed at Joske’s before the separation of appellant and his wife. The young boy about 12 years of age was attending school. Appellant did not contribute money to support the boy except on one occasion he gave $10 when it was brought to his attention that the boy needed some clothing, and that it would take $10 to make the purchase, and this he readily gave, and the lady witness, who was connected with the United Charities, stated that when she called on him for the money he cheerfully gave it, and would have given more had she requested it. Later divorce proceedings were instituted, which seem to have been pending about the time of this cause. There is some testimony indicating an attempt to get the parties together and the wife to move back to the place she had left. This resulted in nothing, and the wife, from the testimony, was very bitter towards her husband, and, while he was’ not so bitter, he did not encourage her return. Appellant stated to some of the witnesses he ■would leave it to the court to say what amount of money he should pay for the support of his family, and especially the children,- that he was willing to do anything along that line that he could so far as his financial ability would permit, and he seemed to be anxious especially about the education of the boy, and was anxious also for the girl not to work in the store, but go to school, and had so expressed himself before his wife •left him when the girl went to work at Jos-ke’s. This is a sufficient statement of the case.

The only question presented for review is:

Does this testimony show that appellant willfully abandoned and neglected to support his minor children when they were in necessitous circumstances? It is clear that.he did not abandon them. The state’s testimony excludes that idea. It does show that the wife abandoned him and took the minor children from him. It does show that when called upon he gave money, that the girl was making money, at least a sufficient amount to support herself from a clothing standpoint, and that during that time the older boy had given the family money at the rate of $15 a week, and that a son-in-law had contributed $75 to $100 to the support of the children. It is also shown that on account of weather conditions appellant had not been able to make not exceeding $60 a month, and that it required this to pay his back debts, rents, telephone bills, water and light, and things of that sort. We are of opinion under our authorities that the state has not made a case by the facts which would justify this man being incarcerated in jail for 30 days allotted him by the jury. See Mercardo v. State, 218 S. W. 492; Davis v. State, 218 S. W. 493; Furlow v. State, 182 S. W. 308; Lamm v. State, 210 S. W. 209; Wallace v. State, 210 S. W. 206; Irving v. State, 73 Tex. Cr. R. 615, 166 S. W. 1166; Dickey v. State, 198 S. W. 309; Windham v. State, 80 Tex. Cr. R. 551, 192 S. W. 248; Verse v. State, 81 Tex. Cr. R. 48, 193 S. W. 303. We are of opinion the evidence does not justify appellant’s conviction under the circumstances stated in this record.

The judgment will therefore be reversed, and the cause remanded. 
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