Windham v. State , 80 Tex. Crim. 551 ( 1917 )

Appellant was convicted under article 640a, Vernon's Ann. P.C., for wilful desertion, etc., of his wife without justification and failure to support and maintain her, she being in destitute or necessitous circumstances.

Appellant has assigned several matters which he claims were errors against him on the trial. One of them presents reversible error, which is:

That the evidence was insufficient to sustain the conviction. We have carefully read the evidence. Without specifically so holding, in view of another trial, the evidence may be sufficient to show a wilful desertion of her, and a refusal or failure to support and maintain her, but the evidence, we think, is wholly lacking to prove that she was in destitute or necessitous circumstances. Under this statute he must not only wilfully and without justification desert his wife and neglect or refuse to support and maintain her, but the State must go farther and prove that she was in destitute or necessitous circumstances as well. As the evidence, in our opinion, fails to show that she was in destitute or necessitous circumstances, the conviction can not be sustained.

The judgment is reversed and the cause remanded.

Reversed and remanded.