Ex Parte Steinhauser, 19366.

• Decision Date: 20 October 1937
• Docket Number: No. 19366.,19366.
• Parties: Ex parte STEINHAUSER.
• Court: Texas Court of Criminal Appeals

109 S.W.2d 485

Ex parte STEINHAUSER.

No. 19366.

Court of Criminal Appeals of Texas.

October 20, 1937.

Commissioners' Decision.

Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.

Habeas corpus proceeding by Alfred Steinhauser. From a judgment remanding petitioner to custody, petitioner appeals.

Judgment reversed, and petitioner ordered discharged.

Moss & Moss, of La Grange, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

On the first of May, 1935, appellant was indicted by the grand jury of Fayette county for the offense of unlawfully and willfully deserting, neglecting, and refusing to provide for the support and maintenance of his then wife, Estella Steinhauser, and his minor child, A. C. Steinhauser, who was under 16 years of age. On the 13th of May, 1935, the district attorney and appellant agreed that the case was to be continued as long as appellant would pay the sum of $5 per week for support of his wife and child, and on the same date the district judge entered the following order: "* * * And the defendant is here now ordered and directed to pay into the registry of the court, for the benefit of his wife, Estella Steinhauser, and his child, A. C. Steinhauser, the sum of five dollars, the first payment to be made on or before the twentieth day of May, 1935, and said cause is continued. * * *"

About July 17, 1935, appellant's wife obtained a divorce; and, in entering judgment, the court made the following order: "It is further ordered by the court that the defendant herein be and he is hereby required and ordered to pay plaintiff for the care and maintenance of the child A. C. Steinhauser, the sum of ten dollars per month until he is sixteen years of age."

On May 19, 1937, after application had been filed to have appellant cited to show cause why he should not be held in contempt of court for not making the payments theretofore ordered, appellant was cited to appear and answer. On the 25th of May, 1937, he filed an answer in which he set up his inability to pay by reason of his poverty, his physical condition, inability to work, insufficient earning capacity, etc. Upon the hearing, the district court entered an order finding appellant guilty of contempt, and assessed his punishment at a fine of $100, and ordered him to jail until he had paid said fine and costs and all past-due installments.

Appellant, having been committed to jail, sought his release by way of habeas corpus. Upon a hearing of the writ before the judge of the Twenty-Second judicial district, appellant was remanded to custody. Hence this appeal.

The opinion is expressed that the uncontroverted testimony shows that appellant was not so situated that he could make the payments required by the order of the court. In short, his failure to comply with said orders appears not to...