
    Darrell Odell Duffey v. State
    No. 27,923.
    January 11, 1956.
    Appellant’s Motion for Rehearing Denied (Without Written Opinion) February 29, 1956.
    
      
      Howze & Howze, Monahans, for appellant.
    
      Leon Douglas, State’s Attorney, Austin, for the state.
   DICE, Judge.

Appellant was convicted of wilfully deserting, neglecting and refusing to provide for the support and maintenance of his minor child, and assessed punishment at four months’ confinement in the county jail.

The indictment was returned by the grand jury on June 23, 1954, and alleged that the offense was committed on or about the 21st day of March, 1954.

The state’s evidence shows that appellant and his former wife, Mrs. Myrtle Olene Eudy, were married in 1952, and to the marriage union was born a child, Pamela Sherlene Duffy, who was about two and one-half years of age at the time of the trial. It is further shown that appellant and his wife separated in March, 1954, when he left her and the child and went to New Mexico. Thereafter, on May 22, 1954, the wife was granted a divorce from appellant and awarded custody of the child, and in the decree appellant was ordered to contribute $83.33 per month for the support of the child.

Mrs. Eudy testified that after the separation she worked at a cafe at a salary of $28.50 per week, and that since the separation and divorce appellant had contributed nothing toward the support of the child except $50.00 which she had received through a justice of the peace in New Mexico in a garnishment of appellant’s check. She further testified that on several occasions after the divorce was granted when she told appellant she needed money for the child’s support he “said he would go to the the pen before he would pay it,” and also said “he didn’t want to pay it.” She also testified that appellant made at least $500.00 per month and that he told her he was receiving on an average of $100.00 per week even while he was sick and unable to work.

Appellant denied that he had wilfully and deliberately refused to support his child and stated that he had never been called upon to support the child. He testified that after he left his wife and child he went to work in New Mexico as an oil field worker at $1.85 per hour and that his top salary was $400.00 per month, and that he was injured in September, 1954, and had been unable to work since that time. He denied that he had any knowledge of the divorce decree which ordered him to contribute to the support of the child and also denied having told his wife he would not support the child. He further testified that he had been denied the right to see his child and that he had carried the child some clothes and toys at Christmas which his former wife’s parents would not accept. He also testified that he was willing to support the child and that when he was able he would contribute to her support.

We find the evidence sufficient to support the conviction and overrule appellant’s contention that the evidence is insufficient to show that appellant wilfully deserted, neglected and refused to support his minor child.

The judgment is affirmed.

Opinion approved by the court.  