Appellant insists in an earnest and able motion for rehearing that the evidence does not support the conviction. He insists that in order to be a violation of the law the abandonment of the wife must be wilful and without justification. This is correct. Appellant insists that inasmuch as he was compelled to marry his wife in order to escape a prosecution for rape, and that he discovered after his marriage that she had been previously unchaste, that he was, therefore, justified in declining to support her. We have very carefully examined his testimony but do not find in it any assertion of the fact that he discovered her criminal connection with other men after such marriage and before he declined to contribute to his wife's support. It is very plain from his testimony that he claims to have had carnal knowledge of her a number of times before they married. He also admits that he never contributed a penny to her support after their marriage, notwithstanding the fact that she was pregnant at the time. While he was not making a large salary, he was getting all he could eat and six dollars a week from the man for whom he worked and could have divided this money with his wife had he so desired.
Appellant stresses the proposition that his wife was living with her mother who was earning ten dollars a week and getting some rent from a little house belonging to her. We have held that the needy and necessitous circumstances of the wife can not be determined by the ability of her relatives to take care of her. If she herself has no money and no means of support and not able to work, the fact that she had parents or relatives who could support her if they so desired, would not be taken by us to be a sufficient fact to rebut the proof of a needy and necessitous condition.
Regretting that we can not agree with appellant's contention, the motion for rehearing will be overruled.
Overruled. *Page 533