Frank v. State

Court of Criminal Appeals of Texas

Frank v. State

274 S.W. 573, 101 Tex. Crim. 121, 1925 Tex. Crim. App. LEXIS 684

CourtCourt of Criminal Appeals of Texas

DecidedJune 17, 1925

DocketNo. 9323.

StatusPublished

Cited by4 cases

This text of 274 S.W. 573 (Frank v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frank v. State, 274 S.W. 573, 101 Tex. Crim. 121, 1925 Tex. Crim. App. LEXIS 684 (Tex. 1925).

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Opinion

BERRY, Judge.

The appellant was convicted in the county court of Austin County for the offense of deserting his wife and minor child, and neglecting and refusing to provide support and maintenance for them and his punishment assessed at a fine of one hundred dollars.

There are many bills of exception in the record, but under the view we take of the case it is not necessary to consider them.

*122 We think the state’s testimony clearly fails to show that at the time of the alleged desertion, or at any time since the desertion, that the wife and child were in destitute circumstances; instead, we think that the testimony of the alleged deserted wife clearly shows the contrary. Por testimony shows that she was married to the appellant in January 1922, and that a child was born to her in April, 1922, that at the time of her marriage, she was a widow with a fifteen year old son; that she and her baby received the benefit of her son’s wages and used them for her support and that her son makes $4.50 a week and in addition to that all the meat they could use at home and that he also receives his own board from his employer. The testimony farther shows that the wife owns her home in Bellville, ■Texas, consisting of about two and one half acres of land, and that she gets two dollars a month water rent, has a garden and raises vegetables and that she has a cow and plenty of milk and butter and that she also has plenty of chickens and eggs. Under these circumstances, we cannot do otherwise that hold that she is not shown to be in destitute and necessitous circumstances.

While it is possibly not germane, it may be well to state that appellant is shown by the testimony to be living with and supporting his five children by a former marriage.

Because the evidence is insufficient to support the verdict, it is our opinion that the judgment should be reversed and the cause remanded.

Reversed and remanded.

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.

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BERRY, Judge.

The appellant was convicted in the county court of Austin County for the offense of deserting his wife and minor child, and neglecting and refusing to provide support and maintenance for them and his punishment assessed at a fine of one hundred dollars.

There are many bills of exception in the record, but under the view we take of the case it is not necessary to consider them.

*122 We think the state’s testimony clearly fails to show that at the time of the alleged desertion, or at any time since the desertion, that the wife and child were in destitute circumstances; instead, we think that the testimony of the alleged deserted wife clearly shows the contrary. Por testimony shows that she was married to the appellant in January 1922, and that a child was born to her in April, 1922, that at the time of her marriage, she was a widow with a fifteen year old son; that she and her baby received the benefit of her son’s wages and used them for her support and that her son makes $4.50 a week and in addition to that all the meat they could use at home and that he also receives his own board from his employer. The testimony farther shows that the wife owns her home in Bellville, ■Texas, consisting of about two and one half acres of land, and that she gets two dollars a month water rent, has a garden and raises vegetables and that she has a cow and plenty of milk and butter and that she also has plenty of chickens and eggs. Under these circumstances, we cannot do otherwise that hold that she is not shown to be in destitute and necessitous circumstances.

While it is possibly not germane, it may be well to state that appellant is shown by the testimony to be living with and supporting his five children by a former marriage.

Because the evidence is insufficient to support the verdict, it is our opinion that the judgment should be reversed and the cause remanded.

Reversed and remanded.

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.

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Bluebook (online)

274 S.W. 573, 101 Tex. Crim. 121, 1925 Tex. Crim. App. LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-state-texcrimapp-1925.

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