Vance Lloyd Montgomery, the child named in the complaint and information, was eight years of age. The mother testified that in December 1960 she was awarded full custody of the child and Earl Montgomery was ordered to pay child support. She testified that the defendant was a good welder and blacksmith and was in good health as far as she knew, and was capable of making$100.00 per week; that all of the money she received for child support came through the office of the District Clerk of Scurry County, Texas. She testified that the defendant had worked for Merritt'sBlacksmith Shop and C. T. Webb's Blacksmith Shop and possiblyothers. She testified that there had been several hearings before the District Judge in regard to the nonpayment of child support by the defendant.
District Judge Sterling Williams was called as a witness for the state and testified that he granted a divorce and awarded custody of the child to the mother and ordered the defendant (the appellant herein) to pay child support; that he had several hearings in regard to his nonsupport; that at a hearing on December 19, 1961, the appellant told him: "I will not pay child support" and said "he would go to jail first'; that he held appellant in contempt and ordered him to jail; that he was released from jail on January 3, 1962, without having purged himself by making child support payments of $10 per week, with the understanding that he was to commence child support payments in three weeks.
On cross-examination, the appellant asked Judge Williams: "Are you testifying here as a judge or a witness?" Judge Williams having answered that he was testifying as a witness, the appellant then asked: "Are you as big a liar here as you are in your office?" The question was not answered and there was no further cross-examination after the bailiff separated them and the trial judge instructed the jury to disregard the disturbance.
The appellant, who chose to represent himself but not to testify under oath in his own behalf and submit himself to cross-examination, told the jury by way of argument that his reason for not paying child support was because "he was always coming up to the District Court for hearings and he was losing jobs as a result of this."
The undisputed evidence shows that the appellantcontributed nothing to the support of his 8 year old son for three and a half months before the complaint was filed. The reason he gave would not excuse his failure to contribute anything for the support of his son for three and a half months. He stated in December that he would not pay child support — would go to jail first. He went to jail and for a time thereafter made contributions for the child's support.
Appellant made no complaint as to the amount he was ordered to pay but said: "I will not pay child support." He made no claim before the jury that he was not financially able to make any contribution to his child's support. Even in cross-examining the child's mother, the only *Page 842 question he asked which might even suggest that he was not able related to his being in the hospital "in the fall of 1962," which was after the complaint had been filed, and she answered that she did not know.
The evidence, viewed in the light most favorable to the state, is sufficient to sustain the jury's finding that the appellant's failure to support his son was wilful and the judgment should be affirmed.