concurring.
The complaint was filed 43 days after appellant and his wife separated. The second child alleged to have been neglected is not mentioned or referred to in any way in the statement of facts. There is no evidence to support a finding that appellant was financially able to contribute more than the $45 he did contribute to the support of his two year old child Jamie Lee Adams.
The state relies upon that portion of Art. 605 P.C. which provides: “Proof of the desertion of such wife, child or children in destitute or necessitous circumstances or of neglect or refusal to provide for the support and maintenance of such wife, child or children shall be prima facie evidence that such desertion, neglect, or refusal is wilful.”
Where the state proves that the wife, child or children were in destitute or necessitous circumstances, and that the defendant parent deserted or neglected or refused to provide any means for their support and maintenance, the prima facie evidence rule found in Art. 605 P.C. applies and relieves the state of the necessity of further proof that such desertion, neglect or refusal to provide was wilful (such as by proof of the defendant’s financial resources or earnings).
*618Such prima facie evidence rule does not apply however where, as here, the evidence shows that the defendant parent, charged with wilfully failing to contribute to the support of his child under 18 years of age, did contribute to the support of such child, and the prosecution is upon the theory that he was able to and should have contributed more than he did.