Appellant was indicted and convicted in the circuit court of Lamar county for an alleged violation of section 861, Code 1930, which section reads as follows: "Any parent who shall desert or wilfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years, leaving such child or children in destitute or necessitous circumstances, shall be guilty of a felony and on conviction *Page 143 thereof, shall be punished by a fine of not less than twenty-five dollars, nor more than five hundred dollars, or by imprisonment in the penitentiary not exceeding two years, or both, in the discretion of the court."
It is enough to say of this case that from time to time before this indictment was returned, the defendant had placed to their credit, in a bank near the home of his two children, a sum of approximately five hundred dollars, and this money was there at the time of the trial, and was, and for some time theretofore had been, available to the two children on allowances to be made therefrom by the chancellor in vacation. In that locality the sum mentioned would be considered a substantial and sufficient amount, if properly expended, to take care of the needs of the children for the time being and for some months to come. The very facts therefore show that the appellant was not guilty of a violation of the statute. He and his wife had been divorced and she had taken the children to another county, and as we have already mentioned, a considerable sum of money had been placed by appellant at the service of the children by taking the proper steps, the money having been properly deposited so as to safeguard it. The case, Moorman v. State, 129 Miss. 864, 93 So. 368, shows the purpose of this statute, and that a prosecution under it was not justifiable under the facts of this record.
Reversed, and appellant discharged.