
    JOINER v. STATE.
    (No. 4506.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    Parent and Guild &wkey;>17(6) — Duties oe Parent-Criminal Oefenses — Evidence—Sue-EICIENCY.
    Evidence held insufficient to establish the offense by a father of willfully neglecting and refusing to provide for the support and maintenance of a child under Acts 33d Leg. c. 101, § 1 (Vernon’s Ann. Pen. Code 1916, art. 640'a).
    [Ed. Note. — Eor other cases, see Parent and Child, Cent. Dig. § 181.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    J. H. Joiner was convicted of an offense, and he appeals.
    Reversed and remanded.
    E. W, Napier, of Wichita Palis, for appellant. B. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for willfully neglecting and refusing to provide for the support and maintenance of his child, 4% years old, who was in needy and necessitous circumstances.

The prosecution was under section 1 of the Acts of 1913, p. 188 (1 Vernon’s Crim. Statutes, art. 640a), which is to this effect: Any parent who shall willfully or without justification neglect or refuse to provide for the support and maintenance of his child under 16 years of age in necessitous circumstances shall be deemed guilty, etc.

Appellant contends, among other things, that the evidence was insufficient to sustain his conviction. This question only need be passed upon. The uncontradicted testimony shows that about April 1, 1917, appellant’s child, 4 y2 years old, was very sick with pneumonia. He and his family were members of a religious order which believed, and he believed, that medicine should not be administered to a sick person, but instead treated by praying to God to heal, and in addition bathe the patient with water and oil, and do such other things as may be within their power to make the patient comfortable, to relieve pain, and expedite recovery. Appellant practiced this treatment with his child, and, according to his testimony, which was undisputed, he and his wife were doing all they could and all they knew how to do for him. He himself worked in the daytime, and was with his child and family at night. His wife was in constant attendance upon the child. The county and city health officers and the humane officer learned of the serious illness of this child, and eommendably took steps to have the child properly treated from their standpoint. When they saw the child and its serious illness they demanded that appellant should call in a physician to attend and treat it. He at first refused to do this because he claimed that the treatment they were giving the child and their prayers were all that was necessary and that the child would be cuied. Because he refused to then call a physician appellant was at once arrested and taken to the jail, but not incarcerated. These officers told him that unless he called a physician that they would remove the child to a sanitarium and have the proper attention given to it. He thereupon called a physi-cían, who treated the- child, and it soon recovered.

Persons might differ as to whether or not appellant’s method of treating the child was a proper one, and, of course, no one can know whether the child would have recovered under that treatment or not; but under any phase of the testimony we think it fails to show or authorizes the jury to find that appellant willfully or without justification neglected to properly provide for his child. On the contrary, we think it shows that he did not willfully or without justification fail to provide for his child in the sense intended by said statute to be made an offense. And while he at first refused to call a physician and have his child properly treated, he did so as soon as the county health officers informed him of the serious illness of his child and the necessity for medical attention, and they would remove the child to a sanitarium, etc. It is true that even at first when so informed he declined to call a physician, but the testimony shows that he did so very soon, or practically immediately thereafter.

We think the evidence excludes the idea of his neglect of his child or failure to provide for it in this respect to such an extent and for such a length of time as would show or justify the jury to find that he did so willfully.

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