
    COVINGTON v. STATE.
    (No. 9897.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.)
    1. Husband and wife t&wkey;304.
    To convict husband for failure to support wife, such failure must be willful.
    2. Husband and wife &wkey;312— Information failing to state that refusal to support wife was
    willful held defective.
    Where information charging refusal to support wife failed to charge that offense was willfully committed, motion to quash should be sustained.
    Commissioners’ Decision.
    Appeal from Hopkins County Court; Geo. C. Stephens, Judge.
    Jim Covington was convicted of refusal to provide for the support and maintenance of his wife, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Dial & Brim, of Sulphur Springs, 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 refusal to provide for the support and maintenance of appellant’s wife, and the punishment is a fine of $25.

The information, omitting formal parts, charges that—

“On or about the 31st day of March A. D. 1924, in the county and state aforesaid, did unlawfully and without justification neglect and refuse to provide for the support and maintenance of Sallie Covington. * * * ”

The appellant made a motion to quash this information because it does not charge that the act or refusal to provide for the support and maintenance of the wife was willfully done. In order to convict a husband under this statute, he must not only desert his wife, or fail to support her, as the case may be, ibut it must be willfully done. Dickey v. State, 198 S. W. 310, 82 Tex. Cr. R. 154; Terrell v. State, 228 S. W. 240, 88 Tex. Cr. R. 599; Windham v. State, 192 S. W. 248, 80 Tex. Cr. R. 551; Verse v. State, 193 S. W. 303, 81 Tex. Cr. R. 48; Lamm v. State, 210 S. W. 209, 85 Tex. Cr. R. 48; Wallace v. State, 210 S. W. 206, 85 Tex. Cr. R. 91.

It being essential to the state’s case that proof be made that the failure to support the wife was willfully done, it follows that the information should have charged that the offense was willfully committed. The information failing in this respect, the motion to quash the same should have been sustained, and, for court’s error in refusing to do so, the judgment is reversed, and the prosecution is ordered dismissed.

PER CIJRIAM. 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.  