Rasor v. State

Appellant insists on rehearing that no witness swore that his children at any time were in destitute or needy circumstances, and that no such state of facts is detailed as justified our conclusion or the verdict and judgment. We have again reviewed *Page 570 the facts. The testimony of Mrs. Rasor and her letters to appellant which were in evidence, seem to reflect the fact that prior to May, 1921, appellant contributed with reasonable regularity to the support of his children. She got a divorce from appellant in December, 1919, at which time she testified that he gave her $380. In June, 1920, she went to live with her mother, taking the children with her. She secured a position paying her $70 per month. She says she paid $25 of this each month to her mother. The mother's husband and son also contributed to the family's support. In addition to the money given her at the time of her divorce, appellant continued to send her other amounts. In April, 1921, Mrs. Rasor wrote to him acknowledging the receipt of $20 and some toys. The letter was in evidence and its contents evince appreciation of the thoughtfulness and kindness of appellant. The complaint herein was filed in July and the case tried in August following. We find in Mrs. Rasor's testimony the following:

"At present my children are not in need and destitute. I am supporting my children, working and taking care of my babies. It is a fact that they are not destitute, because at present I am supporting them and giving them absolutely whatever they need; whatever they need to eat and to wear, I am getting that for them, and they are not actually in need of any necessaries that I know of."

Mrs. Rasor's mother was placed on the stand as a witness for the State and testified as follows:

"These children are not in destitute circumstances. As to why they are not, well, my son was twenty-three years old on the 15th of June, and he told me, he says, `Mamma, if she will let that man alone and never speak to him again, I will devote my whole life to her children.' I am able to support them, we have never gone hungry, and they are not destitute and they are not in necessitous circumstances. I have never seen them in necessitous circumstances. I know that, I am not just guessing, I have them in my possession, they are with me all the time. I mean to say that these children were not at any time in destitute or necessitous circumstances and that I am able to help take care of them; they have not been at any time in destitute or necessitous circumstances. It is not a fact that they have needed for anything or that these children have been in needy and destitute circumstances, they never have as far as I am concerned."

In another place this witness further said:

"I still stick to it, that since she has been at my house they have not been in destitute or necessitous circumstances for anything, I know they haven't, we never go hungry, and they have had plenty to wear and to eat."

These facts appear in the testimony of the State witnesses. It is our custom in trying to settle the sufficiency of the evidence to support *Page 571 a verdict, to look mainly to the State's testimony. If we turn to the testimony of the defence in this case we find a number of witnesses testifying to appellant's constant care and affection for his children. Weighing all the evidence for the State in a careful effort to see if it presents a case wherein any actual destitution or need on the part of said children appeared as a result of the failure of appellant to contribute to their support from May, 1921 to the date of trial, we are constrained to say that we believe we were mistaken in our original conclusion. We do not think the record evidences any wilful withdrawal of support, or failure to take care of, or wilful desertion of said children by appellant prior to May, 1921. So believing we feel impelled to grant this motion for rehearing and direct a reversal, and it is so ordered.

Reversed and remanded.