
    OTTO v. STATE.
    (No. 9031.)
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1924.)
    1. Parent and child <&wkey;l7(2) — One'cannot be convicted of willful nonsupport of minor children unless he is able to support them and refuses to do so.
    One cannot be convicted of willfully deserting and failing to support his minor children under 16, unless he is able to support them and refuses to do so.
    2. Parent and child <&wkey;!7(6) — Evidence- held not to show accused willfully deserted and failed to support his minor children.
    Evidence held, not to show accused willfully deserted and failed to support his minor children under 16 years of age.
    Appeal from Harris County Court, at Law; Boy F. Campbell, Judge.
    J. A. Otto was convicted of deserting his children under 16 years of age, and he appeals.
    Reversed and remanded.
    B. L. Palmer, of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMOR.E, J.

Appellant was convicted in the county court at law of Harris county of desertion of his minor children under 16 years of age, and his punishment fixed at a fine of $25 and two days in the county jail.

There are no bills of exception in the record, and the only question is the sufficiency of the testimony. But two witnesses testified, appellant’s former wife appearing for the state and appellant himself testifying for the defense. The wife stated in her testimony that she and appellant had separated and she had obtained a divorce from him in which she was given the custody of the two children. She also- stated that when they separated appellant gave her all of the furniture that they had and deeded her their equity in a home which they had been paying out. She also said that during part of the time since separation he had given her small sums of money each week until a' short time before this trial. No statement appears in her testimony as to appellant’s ability to support said children.

In order to support the allegation of willfulness in the alleged desertion and failure to support, it is necessary that there be some testimony showing that the accused is so situated that he can support his children but will not. Appellant, in his testimony, states that he had paid $600 on the home, and had spent several hundred dollars improving it, and valued the equity which he deeded to his wife when they separated at about $900. He also said that he had paid about $1,200 for his furniture which he gave her, and only owed $35 on it. She was receiving at the time of the trial $40 a month rent from said house. Appellant testified that he had been out of work a great deal of the time since his separation from his wife, and that he had intended, and still intended, to support his children, and would pay money to their mother for their support as soon as he earned it. A letter written to appellant by his wife was in evidence and showed admissions on her part that she had fussed at him and cursed him and that he had not mistreated her.

We are of opinion that the evidence does not show a willful failure or refusal on the part of appellant to support his children, and for this reason the judgment will be reversed, and the cause remanded. 
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