According to the appellant's testimony, he and his wife separated in December, 1922. She left his home, took her infant and went to that of her father, where she has since resided. In January, 1923, he filed suit for divorce which had never been disposed of. For a while after the suit was filed, he paid alimony to his wife at the rate of five dollars per week for part of the time and three dollars a week for the balance. It seems, however, that this ceased, and that prosecution was established and conviction took place in July, 1924. Since that time, according to the appellant, he had contributed on an average of $1.50 per week in the way of groceries and supplies to his child. Appellant resided with his father, who was a farmer. He also worked for his father, receiving wages averaging from twenty to thirty dollars per month, in addition to his board and lodging. He had incurred some expense on account of medical treatment to one of his ears.
The testimony given by the appellant's wife and her father was such as to warrant the court in concluding that the separation was due to the fault of the appellant in failing to provide for his wife and child; that since July, 1924, he had made no contribution to her support and no real contribution to the support of the child, though he had at intervals of about two weeks, given to the child some candy, sardines, crackers, etc.; that the wife and child were in need of clothing and were dependent for their food and shelter upon the bounty of the father of the wife.
The court was warranted in finding that the appellant was an able-bodied man; that he was capable of earning money and that he did, in fact, earn money; that he had wilfully refrained *Page 123 from contributing to the support of his wife and child. We are not prepared to say that the circumstances were such as to warrant this court in holding that the judgment of conviction is not supported by the evidence. See Matthews v. State,84 Tex. Crim. 623; Rausch v. State, 93 Tex.Crim. Rep.; Williams v. State, 89 Tex.Crim. Rep.; Curd v. State,86 Tex. Crim. 553; Wilkerson v. State, 98 Tex. Crim. 118.
The motion for rehearing is overruled.
Overruled.