dissenting.
There is evidence in this record to sustain a finding that appellant had earning capacity and, before landing in jail in Oklahoma, worked fifteen days for which he received $15.52 a day; that he had $146.81 when he was placed in jail after paying $65 down on an automobile.
In the same letter in which he admitted having this $146.81 he wrote his wife regarding support for the children. Referring to a communication from his father-in-law, appellant said in his letter: “He said I would not see you or the kids, and if I didn’t want to get sued, to be damn sure and keep up on my support. Well, you tell him I said go straight to hell. When you get the kids away from there I’ll start paying support and not before and it won’t be paid by the month like he said, it will be paid by the week.”
Having so stated his purpose and intent, appellant, after returning the family to Abilene and living with his wife for about two weeks, left them, and thereafter in the period from September 1, 1957, to April 29, 1958, when the indictment was *605returned, contributed for the support and maintenance of his wife and four children a total of thirty-seven dollars, the last contribution being $4 in December 1957, at which time he also bought the baby some clothes.
Mrs. Marshall testified that appellant remained in Abilene for about two months after leaving the family; that he worked some at Kermit and she believed at Odessa; that while working at these places he sent no money to support his wife and children ; that she saw him occasionally from June through the year 1957; saw him once or twice in January or February; that he said he had been hurt but he was not hurt bad enough to keep him from working.
Mrs. Marshall further testified that at the time of the trial she and the children were living in a practically unfurnished tenant house, using only furniture that different friends and relatives contributed — “whatever they weren’t using.”
The offense of which appellant stands convicted is committed not by an overt act, but by omission or neglect. It is said to be a continuing offense because it continues so long as the neglect continues without excuse. Ex parte Beeth, 142 Texas Cr. Rep. 511, 154 S.W. 2d 484; Ex parte Logan, 151 Texas Cr. Rep. 129, 205 S.W. 2d 994; Ex parte Barrow, 152 Texas Cr. Rep. 155, 211 S.W. 2d 753.
Evidence that the father was able to contribute more to the support of his minor children than he did has been held sufficient to show that the neglect and failure was wilful. Rainwater v. State, 140 Texas Cr. Rep. 88, 141 S.W. 2d 364.
This was recognized as correct in Cardona v. State, 160 Texas Cr. Rep. 541, 273 S.W. 2d 73, cited by the majority, where the evidence was held insufficient. We said: “In order to here convict, there must be some testimony that the accused was so situated that he could have contributed more to the support of his children than he did.”
The evidence should be held sufficient to sustain a finding that appellant could have contributed more to the support of his children than he did, and that his failure to do so was wilful.