HA EPEE, Judge.
I can not concur in the reversal of this case, but think the judgment should be affirmed.
The first error stated in the above opinion reversing the case is stated as follows: “It will be noted the court did not submit the issue that if defendant’s wife abandoned him in Oklahoma, that his subsequent refusal to live with her in Coryell County would entitle him to an acquittal.” The court did instruct the jury: “Unless you find from the evidence beyond a reasonable doubt that the defendant committed the offense of seduction upon Miss Olive Pierce as alleged in the indictment you will acquit him. If you find from the evidence that the defendant, Tom Qualls, had intercourse with Miss Olive Pierce, without a promise of marriage, if he did do so, or if the defendant seduced Olive Pierce and thereafter offered to marry her, but that she refused to marry him,
or if after they were married his wife abandoned him
or was guilty of excesses, cruel treatment or outrages toward him of such a nature as to render their living together insupportable, or if you have a reasonable doubt thereof
you will acquit the
defendant(Italics ours.) It will be noticed that in this charge the court instructs the jury that if Mrs. Qualls abandoned her husband he should be acquitted and was a sufficient presentation of that issue and it was not necessary to give the special requested charge, for in the main charge of the court he had affirmatively submitted every defensive issue made by the testimony offered in behalf of appellant.
Neither do we think that the second special charge quoted in the opinion should have been given. It was either error to admit the testimony, or the charge was inapplicable, for it instructs the jury it could not be considered for any purpose as against the defendant. If it could not be considered by the jury “even as a circumstance against him” on any phase of the case, it was improperly admitted. In the other appeal (Qualls v. State, 71 Texas Crim. Rep., 67, 158 S. W. Rep., 539), we held this testimony admissible, and our reason for so doing was that Mrs. Qualls was testifying to a positive abandonment by appellant, and a refusal to live with her after a solicitation on her part to renew their relations as husband and wife. Appellant, by his testimony, was attempting to show that Mrs. Qualls abandoned him, and the reason of his refusal to renew the relations as husband and wife when solicited by his wife to do so, was that he had been informed by his father that she had returned to Texas to send him to the penitentiary. He. denied that when he left her in Oklahoma and came back to Texas that he intended to abandon his wife; he said he intended to return to her all the time until he got this information from his father, and he would have continued to live with her but for the fact his father had told him his wife had said that she had come back to Texas to send him to the penitentiary ; he introduced his father to prove that he had so told his son, and his uncle, B. L. Qualls, to prove that his wife had said
that she was returning to Texas for this purpose. His wife denied making such remark, saying the only remark she did make to B. L. Qualls was when appellant’s uncle, B. L. Qualls, told her that appellant did not intend to live with her any more, and he would give her $350 to release appellant, she became angry and said that she was going home to get “revenge.” And then testified that when her anger cooled, she had no desire to prosecute appellant if he would continue to live with her as husband and wife, and that she wrote him a letter in which she requested a renewal of the relations with appellant as husband and wife. B. L. Qualls testified he offered her the $350 to release appellant, but says he did not tell her that appellant had then quit her, saying he only told her that Tom (appellant) would not live with her longer than the two j-ears required by law anyway. Under such circumstances we think appellant’s often expressed intention, before and after marrying his wife, that he did not intend to live with her longer than the two years required by law (of which fact she was not made aware at the time she married him) was admissible in evidence as bearing on the fact, first, whether he or Mrs. Qualls, in fact, did the act of abandoning and, secondly, on the issue of whether or not the statement of his father to him that she had come to Texas to send him to the penitentiary, was his sole reason for refusing to live with her after she came back to Texas, as claimed by him. And if the testimony was admissible on these issues, the court correctly refused the special charge that it could not be considered for any purpose, and the charge of the court in submitting the issues is not subject to the criticism that “it authorized the jury to convict appellant if they believed he intended to abandon his wife after two years.” Such an issue was not submitted to the jury, .nor could the jury have been misled into any such misconception of the charge as given.
The contention in the opinion that the court should have given the special charge presenting the issue that if appellant offered to marry her and she refused such offer, we can not agree to for two reasons. First, the court, as shown above in the charge copied, did so instruct the jury. Secondly, while the court did submit that issue, we do not think .such an issue is really raised by the testimony. While it is true, appellant testified that before Miss Pierce (now Mrs. Qualls) told him she was pregnant, he discovered the fact that she had missed her menstrual period by looking at her, and suggested as much to her, and also suggested they get married at once, but says she denied she was'pregnant and said she was not ready to get married right then. However, appellant also testified that shortly thereafter, Miss Pierce came to him and ■ told him she was pregnant and insisted on him marrying her and he refused to do so. Mrs. Qualls denies all except that when she first discovered she was pregnant she suggested to appellant that they get married at once and he refused, and when she kept insisting he stopped coming to see her, when the prosecution for seduction was begun. Take the testimony of appellant alone, and in its strongest light it was not a
refusal to marry, but only a suggestion of delay, which in but a short time he admits she came to him and said she was now ready to marry him. This does not present a refusal to marry in the sense that would bar a prosecution for seduction. And furthermore he subsequently did marry her to secure a dismissal of the prosecution for seduction, and having done so to obtain the dismissal of that case, he was then under legal obligation to carry out the obligations he assumed by such a course.
As to whether Mrs. Qualls had been engaged to other men prior to the time she became engaged to appellant, was not germane to any issue in the case, as he did not propose to follow it up with any proof that she had had carnal intercourse with such men, and the objections of the district attorney should have been sustained. However, as the court did admit the testimony at appellant’s suggestion, the fact that in doing so, he remarked, “I don’t regard the matter serious, I think it admissible, and the jury can give it such weight as they think it entitled to” presents no error. It is shown that by the bill State’s counsel contended that it was inadmissible to compel Mrs.
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HA EPEE, Judge.
I can not concur in the reversal of this case, but think the judgment should be affirmed.
The first error stated in the above opinion reversing the case is stated as follows: “It will be noted the court did not submit the issue that if defendant’s wife abandoned him in Oklahoma, that his subsequent refusal to live with her in Coryell County would entitle him to an acquittal.” The court did instruct the jury: “Unless you find from the evidence beyond a reasonable doubt that the defendant committed the offense of seduction upon Miss Olive Pierce as alleged in the indictment you will acquit him. If you find from the evidence that the defendant, Tom Qualls, had intercourse with Miss Olive Pierce, without a promise of marriage, if he did do so, or if the defendant seduced Olive Pierce and thereafter offered to marry her, but that she refused to marry him,
or if after they were married his wife abandoned him
or was guilty of excesses, cruel treatment or outrages toward him of such a nature as to render their living together insupportable, or if you have a reasonable doubt thereof
you will acquit the
defendant(Italics ours.) It will be noticed that in this charge the court instructs the jury that if Mrs. Qualls abandoned her husband he should be acquitted and was a sufficient presentation of that issue and it was not necessary to give the special requested charge, for in the main charge of the court he had affirmatively submitted every defensive issue made by the testimony offered in behalf of appellant.
Neither do we think that the second special charge quoted in the opinion should have been given. It was either error to admit the testimony, or the charge was inapplicable, for it instructs the jury it could not be considered for any purpose as against the defendant. If it could not be considered by the jury “even as a circumstance against him” on any phase of the case, it was improperly admitted. In the other appeal (Qualls v. State, 71 Texas Crim. Rep., 67, 158 S. W. Rep., 539), we held this testimony admissible, and our reason for so doing was that Mrs. Qualls was testifying to a positive abandonment by appellant, and a refusal to live with her after a solicitation on her part to renew their relations as husband and wife. Appellant, by his testimony, was attempting to show that Mrs. Qualls abandoned him, and the reason of his refusal to renew the relations as husband and wife when solicited by his wife to do so, was that he had been informed by his father that she had returned to Texas to send him to the penitentiary. He. denied that when he left her in Oklahoma and came back to Texas that he intended to abandon his wife; he said he intended to return to her all the time until he got this information from his father, and he would have continued to live with her but for the fact his father had told him his wife had said that she had come back to Texas to send him to the penitentiary ; he introduced his father to prove that he had so told his son, and his uncle, B. L. Qualls, to prove that his wife had said
that she was returning to Texas for this purpose. His wife denied making such remark, saying the only remark she did make to B. L. Qualls was when appellant’s uncle, B. L. Qualls, told her that appellant did not intend to live with her any more, and he would give her $350 to release appellant, she became angry and said that she was going home to get “revenge.” And then testified that when her anger cooled, she had no desire to prosecute appellant if he would continue to live with her as husband and wife, and that she wrote him a letter in which she requested a renewal of the relations with appellant as husband and wife. B. L. Qualls testified he offered her the $350 to release appellant, but says he did not tell her that appellant had then quit her, saying he only told her that Tom (appellant) would not live with her longer than the two j-ears required by law anyway. Under such circumstances we think appellant’s often expressed intention, before and after marrying his wife, that he did not intend to live with her longer than the two years required by law (of which fact she was not made aware at the time she married him) was admissible in evidence as bearing on the fact, first, whether he or Mrs. Qualls, in fact, did the act of abandoning and, secondly, on the issue of whether or not the statement of his father to him that she had come to Texas to send him to the penitentiary, was his sole reason for refusing to live with her after she came back to Texas, as claimed by him. And if the testimony was admissible on these issues, the court correctly refused the special charge that it could not be considered for any purpose, and the charge of the court in submitting the issues is not subject to the criticism that “it authorized the jury to convict appellant if they believed he intended to abandon his wife after two years.” Such an issue was not submitted to the jury, .nor could the jury have been misled into any such misconception of the charge as given.
The contention in the opinion that the court should have given the special charge presenting the issue that if appellant offered to marry her and she refused such offer, we can not agree to for two reasons. First, the court, as shown above in the charge copied, did so instruct the jury. Secondly, while the court did submit that issue, we do not think .such an issue is really raised by the testimony. While it is true, appellant testified that before Miss Pierce (now Mrs. Qualls) told him she was pregnant, he discovered the fact that she had missed her menstrual period by looking at her, and suggested as much to her, and also suggested they get married at once, but says she denied she was'pregnant and said she was not ready to get married right then. However, appellant also testified that shortly thereafter, Miss Pierce came to him and ■ told him she was pregnant and insisted on him marrying her and he refused to do so. Mrs. Qualls denies all except that when she first discovered she was pregnant she suggested to appellant that they get married at once and he refused, and when she kept insisting he stopped coming to see her, when the prosecution for seduction was begun. Take the testimony of appellant alone, and in its strongest light it was not a
refusal to marry, but only a suggestion of delay, which in but a short time he admits she came to him and said she was now ready to marry him. This does not present a refusal to marry in the sense that would bar a prosecution for seduction. And furthermore he subsequently did marry her to secure a dismissal of the prosecution for seduction, and having done so to obtain the dismissal of that case, he was then under legal obligation to carry out the obligations he assumed by such a course.
As to whether Mrs. Qualls had been engaged to other men prior to the time she became engaged to appellant, was not germane to any issue in the case, as he did not propose to follow it up with any proof that she had had carnal intercourse with such men, and the objections of the district attorney should have been sustained. However, as the court did admit the testimony at appellant’s suggestion, the fact that in doing so, he remarked, “I don’t regard the matter serious, I think it admissible, and the jury can give it such weight as they think it entitled to” presents no error. It is shown that by the bill State’s counsel contended that it was inadmissible to compel Mrs. Qualls to give the names of the men to whom she had formerly been engaged, and said it might cause divorces as some of the men had married. The court remarked he did not regard it as a serious matter, implying that it would not be likely to cause divorces, and such a remark would not be a comment on the weight of the testimony, for he followed it up by saying that the jury could give the fact that she had been engaged to other men, such weight as they thought proper. Neither do we think that the bill indicates the district attorney was nervous about the matter,—he had a right to make an objection to testimony he thought inadmissible, and we think his objection should have been sustained, for it would be immaterial how many men she had been engaged to prior to the time she became engaged, to appellant.
We also think it was permissible under the circumstances for Mrs. Qualls to explain how came her to make the remark she was going to Texas to "get revenge.” Appellant elicited this fact on cross-examination of the witness, introduced other testimony to prove that she did make the remark, for the purpose of showing that his wife had abandoned him and he had not abandoned her. The explanation she gave was that she had just been informed that she would be paid $350 to release appellant from his marital vows, and further informed, at least, that he would live with her only two years at most if she did not take the money and release him; that this angered her and she made this remark under such exciting influences. It also further appears she had just gotten hold of a letter written by appellant to his brother, Cleve, wherein appellant had said, one of them being in Texas and the other in Oklahoma, "he was just as close to his wife as he ever expected to be, and he felt like a bird out of a cage, and felt free and was going to see some of the world.” A wife, under such circumstances, would be calculated to get angry and make remarks and when appellant elicited such remarks as defensive matter, the occasion for them being made, is cer
tainly admissible. This, too, especially when it appears that she subsequently made overtures to appellant and he declined them.
We have discussed only the matters discussed in the above opinion; however, we do not think any of the other matters present error and are of the opinion the judgment should be affirmed.
Affirmed.