Trial v. State

205 S.W. 343, 84 Tex. Crim. 16, 1917 Tex. Crim. App. LEXIS 419

• Court: Court of Criminal Appeals of Texas
• Decided: October 3, 1917
• Docket: No. 4563.
• Status: Published

Opinions

PRENDERGAST, Judge.

—The information based on the complaint is in two counts. One alleges that appellant on or about February 11, 1915, did unlawfully, wilfully and without justification, desert, neglect and refuse to provide for the support and maintenance of his wife, Ida Trial, who was then and there, and is at the date of filing this information, in destitute and necessitous circumstances. The second count alleges that on or about said date appellant did unlawfully, wilfully and without justification, desert, neglect and refuse to provide for the support and maintenance of his infant child six weeks old at the time of said desertion, said child then and there being in destitute and necessitous circumstances, alleging the name of the child.

Both counts were submitted for a finding by the jury. The evidence was unquestionably ample to sustain both. The jury returned a general verdict of guilty and fixed his punishment The statute prescribing this offense is the Act of 1913, page 188, article 640a, Vernon's Criminal Statutes, to this effect: “That any

husband who shall wilfully or without justification desert, neglect or refuse to provide for the support and maintenance of his wife who may be in destitute or necessitous circumstances; or any parent who shall wilfully or without justification desert, neglect or refuse to provide for the support and maintenance of his child under the age of sixteen years in destitute or necessitous circumstances, shall be deemed guilty, etc.”

Attention is called to the fact that the desertion, etc., by the husband of his wife must be wilful or without justification, not wilful and without justification, and the same thing applies to the desertion, etc., of the parent of his child. Again, the statute does not require that the wife or child shall be both in ■ destitute and necessitous circumstances but either in destitute or necessitous circumstances.

Appellant and his said wife were married some four years before he deserted her. They had lived together in harmony and peace all these years. She was an affectionate, true and faithful wife to him. She bore him two children; one a little boy about two and one-half years old and the other an infant girl six weeks old at the time he cruelly deserted her and his infant girl. They lived at Hobson, a small station on the Aransas Pass Railway, not far from San Antonio. Her home had been in San Antonio, where she married her husband, though prior to her marriage she had taught school at Hobson. Her parents lived in San Antonio. Her father and mother had been separated for some' time. Her father owned a home in San Antonio and kept house with his two other unmarried daughters. Her mother, it seems, as one or two witnesses testified, had the reputation of being a prostitute and that she had kept assignation houses in San Antonio. During all of their married life, while living together, appellant and his wife .visited her parents in San Antonio, staying sometimes with her father and at other times with her mother; generally with her father. She swore, and the evidence, would undoubtedly justify the jury to find and believe, that if her mother was of the character indicated and kept such houses, that, she did not know it and was not aware of it. Appellant, himself, shows that he never became aware of it until only less than about four months before he deserted his wife and infant child. Prior to the time they married, his wife had been married to another man, living with him only about ten days. She procured a divorce from him and had her maiden name restored to her long before she married appellant. He claimed he did not know that she had been previously married and divorced at the time he married her. He does not claim that she ever at any time represented to. him that she had not been previously married and divorced. At most, his claim is that she' did not affirmatively so tell him. On the other hand, she swore positively that she had fully told him before she married him about her previous marriage and divorce. The jury were clearly justified in finding and believing that. she had so told him and that he knew it before he married her. He and his wife visited together and stayed with her mother some two days about the middle of October, 1914, just two months before the birth of their last child. With his consent she went to her father’s to be confined when this child was born. He either went with her or visited her there both before and after the birth of this child.' As soon as she was able after the birth of this child, she returned to their home in Hobson, from her father’s, with both children. The little infant child became quite sick. It seems they had to send off to Karnes City, or some other place several miles away, for a physician to attend this infant. It getting ho better she wanted to take it and the little boy to her father’s in San Antonio so as to have physicians there treat the child, as it would be much more satisfactory and less expensive to them. He said he did not consent to this. She swore positively that he did and the circumstances show that he did consent. She took the children to her father’s and had the baby treated there by a physician. She was gone then only four or five days. While there, needing badly a pair of shoes, she phoned to her husband for his consent to let her buy a pair of shoes, and as she had no money there to pay for them to have them sent by express C. O. D. He refused to let her buy the shoes. She then returned to her home in Hobson with her two children on or about February 11, 1915. He determined, as he swore, to desert her some two or three months before her last child was born, but he also swore that he never so told or intimated to her at any time. She swore that, she had no idea that he intended or would desert her. Their home in Hobson was from a half to a mile from the railroad depot. When she reached there on said date she took her two children to her home. Finding the door locked she raised a window and went in. Soon afterward he approached the house but he did not go in to see either her or his little sick haby. He did not unlock the door. Through the window she handed to him the checks for her baggage, requesting him to go to the depot and bring it. He took the checks and promised to do so. His little boy at the time was out in the yard playing. He asked the child if he wanted to go with him. Of course he did and he took him. He went to, or toward the depot, met someone and sent the checks back to his wife. He did not take her baggage to her or have any other to do so. He immediately struck out with his little boy and went to his father’s, who lived in the same town. When the messenger by whom, he had returned to her the checks delivered his message, she, for the first time, heard that he intended to desert her. She wanted to see him and talk the situation over with him, and for that purpose took her sick infant and went to his father’s, where he then was, and was met by his father and refused admittance or an interview with her husband. Her husband, when she arrived at his father’s, skipped out the back way with the little boy to his sister’s. His father ordered her away. This was about night. She refused or declined to go. He then sent for an .officer and had the officer to "forcibly take her away to her home. She was absolutely destitute of all food and of any funds with which to buy food. She then, for the first time, learned that on said date, February 11, 1915, appellant, over his signature, had had published in the local paper a notice that he “would not be responsible for any accounts contracted by her.” She remained at her home two days, waiting and hoping to get to see him and talk the matter over. Her wait and hope were in vain. She was fed these two days by her kind neighbors. She had no money whatever and no means of getting any. She determined to return to her father in San Antonio and went to the depot to take the train for that purpose. At the depot a friend gave her three dollars to buy her ticket. Appellant’s father or brother, one or the other, later sent her three dollars for this purpose. It seems she took that money and repaid the friend who had made the loan to her.

The complaint and information herein were filed February 35, 1915. This case was not tried until more than two years later, in March, 1917.

In his brief appellant frankly stated: “It would be folly to argue that the evidence is not complete and convincing that appellant did desert his wife”; but, he contends, that neither she nor his little baby were in either destitute or necessitous circumstances. His evidence even shows that his wife at the time he deserted her and his child had not a mouthful of provisions, and so far as he was concerned they would have starved but for the food furnished them at the time by kind neighbors. Her testimony establishes this positively and unequivocally. He claimed, however, that his father when trying to get her to leave his home offered to pay her hotel bill for one night if she would go there. Doubtless his and his father’s intention was to have her leave Hobson as soon as possible. She swore she did not even have five cents in money, and all the evidence excludes the idea that she had any way to get any or to get any provisions. He had just published in the local paper a notice to the public that he would not be responsible for any accounts' contracted by her.

He shows that he vigorously contested her application under the second section of said Act wherein she applied for an order from the judge of the lower court to require him to pay to her money for her support and that of her said child, the -small sum of $30 per month. The whole testimony, without any doubt, showed at the time he deserted her and his infant child he did not provide any support for her or for his child. His contention further was that her father was able and willing to support and maintain her and her infant child, and for that reason she and her child were neither in necessitous or destitute circumstances.

Both in law and in morals the husband must support his wife and child, not only while he lives with them but also after he deserts them. Sec. 2, Act of 1913, p. 189, Vernon’s Crim. Stats., art. 640b; Magee v. White, 33 Texas, 180; Callahan v. Patterson, 4 Texas, 61; 21 Cyc., 1151; Utsler v. State, 81 Texas Crim. Rep., 501; Pippins v. State, 79 Texas Crim. Rep., 525; Walters v. Neederstadt, 194 S. W. Rep., 514. The fact that someone else, even a near relative of the wife and baby, was able and willing to support them and prevent them from suffering for lack of food and raiment would not, and could not, relieve appellant from his unquestioned duty and responsibility. The husband, and not someone else, is required both in law and in morals to support and maintain his wife and child. In the case of State v. Waller, 90 Kan., 829, 136 Pac. Rep., 215, which was quoted and approved by the Supreme Court of Tennessee in State v. Latham, 188 S. W. Rep., 534, it was correctly held as follows: “The duty of a husband to maintain his wife is * * * independent of the native disposition to generosity on the part of relatives, friends, and even strangers, which may be confidently relied on to protect a neglected woman from suffering and want. If a husband fail to provide his wife with the necessaries of life she is authorized to procure them on his credit if she can. Civil remedies exist whereby support may be compelled. But the duty is too often evaded in such a way that these measures are wholly inefficient. In view of this fact the Legislature undertook to provide a method and a sanction adequate to secure performance. The essence of the Act is that a man shall not be allowed to shift the burden of supporting his wife and children upon others under no obligation to bear it, and possibly upon the State itself. ■Therefore, whenever a husband, without just cause, neglects or refuses to provide for the support and maintenance of his wife, and thereby places her in such a situation that she stands in need of the necessaries of life, it is not material that they are supplied by her own labor or by sympathizing relatives, friends, or strangers, so that she does not in fact suffer from the privation. He is guilty if he leaves her in such circumstances that without her own efforts or outside help she would lack the necessaries of life.”

Appellant has some bills of exceptions to the court’s action in excluding some proffered testimony, which bills show this state of facts: In one he proposed to have his wife to testify and he himself to testify that about one month after this prosecution was begun he offered to have both of their children live with his father, who was amply able to care for and support them and who was willing to do so; and further, that his father would give and set aside sufficient property for the purpose of guaranteeing that his proposition would be carried out, and when the two children became twenty-one years of age his father would give each one of them $1000 cash. In another he offered testimony to the effect that about a year after this prosecution was begun his father, at his request, proposed that their two children should be placed in a Catholic school in San Antonio; the little boy at that time and the little girl when she was old enough to go to school, hut to remain with its mother until put in school; that his father would keep them in the said school until they were of age or as long as they would stay, and when of age or the girl married would give each 100 acres of land; that his father would deed the land in trust to his brother, and if one ' child should die before maturity the survivor should get all the land, and if both died before maturity the land should revert to his father^ and in addition his father would give his wife $500, if necessary, with which she could go to school and brush herself up to teach school. In another he offered to prove that in January, 1917, nearly two years after the offense had been committed, he made some other proposition to her of what his father would do for his children, like the proposition just above stated.

The court permitted him to prove that on said several occasions‘he made some proposition to her about having the children taken care of by his father, which she declined, but upon objection of the State he at first refused to permit him to prove the details of said several propositions stated above. The court qualified these bills by stating that the attorneys for the State withdrew their objections to said testimony. He states, however, that when he is allowing and approving these bills with this qualification both appellant’s and the State’s attorneys are present and appellant’s attorneys declare they did not understand that the State had withdrawn its objection and the court has no reason to believe they are not honest in their contention that they did not so understand the ruling of the court.

As stated, this prosecution was begun February 25, 1915, alleging the desertion by appellant of his wife and child while they were in destitute and necessitous circumstances on February 11, 1915. Under well established principles the offense thus charged would embrace the limitation period of two years before the information was filed, but under no circumstances could it embrace such an offense committed after the filing of the information. Ho prosecution can be had for any offense committed, or to be committed, in future. The offense must necessarily be a past offense. Heither can the accused, after prosecution is begun and after the crime has been committed, create a defense. The defense thereto must necessarily be limited to what occurred at the time of the commission of the offense or prior thereto. If there are any exceptions to these principles they do not occur to us now, nor could they be applicable herein.

It is proper to state further that practically simultaneously with appellant’s desertion of his wife and child he filed a suit for divorce against her and sought to have the court in that case award the custody of both children to-'him and to take them away from his wife. This was contested by his wife. Doubtless all of these propositions by him were in view of the litigation between them over the custody of these children and not as any proposition to support them as he was both in law and morals bound to do, whoever had the custody of them. Surely no mother would be required as a condition precedent to her husband’s support of their children to surrender her possession of them to anyone; to even her husband, much less his father. It certainly would be a horrible thing to require a mother to give up the possession of a six weeks old baby at her breast. Ho court would be expected to require or tolerate such an outrage. The principle held by the Court of Appeals of Missouri, in State v. Fuchs, 17 Mo. App., 460, is correct and applicable here. In that case Fuchs was prosecuted for abandoning his wife without good cause and failing, neglecting and refusing to maintain and provide for her under a law substantially as ours in this particular. Fuchs offered testimony that some six weeks before the trial of the offense therein charged to have been committed, and only some twelve days after he deserted her, in substance, tending to show his wife had been intimate with another man after he deserted her. The State therein objected to such testimony and the court sustained the •objection. Fuchs complained that this was error. The court held the •objection was properly sustained, saying: “The information was filed October 35th and trial took place December 18th. This inquiry as to the wife’s conduct was directed to the six weeks preceding the trial, and, therefore, to a time subsequent to the date of the- filing of the information. If the State had a case when the information was filed it could not lose it by matter subsequent; if it had no case it could not get it by matter subsequent. . . . The fact that there was cause for the abandonment subsequent to the filing of the information does not tend to establish a case for the abandonment prior to such time. For this reason all testimony should have been limited to a time preceding the filing of the information.”

In this ease the fact, if‘so, that appellant nearly two months after he had committed the offense charged herein then proposed to his wife that his father would support her infant child then at the breast only a few weeks old, if she would surrender her possession of it to his father, and that a year later he made somewhat the same proposition, was not and could not be any defense whatever to the crime he had already committed as denounced by the statute. The court should have excluded all this evidence. Hot only the details, but the whole of it.

Appellant complains that the court refused to give some special charges which he requested. One of these was to the effect that if the jury believed he was a member of the Catholic church before he married and that his wife did not tell him that she had formerly been 'married and divorced, and upon learning these facts it disturbed him mentally and he decided he could not in good conscience .and in accordance with his religious belief lawfully live with her and for this reason abandoned her, to acquit him, so far as his abandonment of his wife was concerned. In another that if his wife stated to him that when visiting in San Antonio she saw her former husband, and he did not know but learned afterwards who he was and she told him, she was tired of living with one man and intended to quit him and that he learned upon investigation that his wife visited her mother and her mother at the time or prior thereto conducted an assignation house, and that upon learning these facts he abandoned her, then he would not be guilty of wilfully and without justification abandoning her and to acquit him.

The court did not err in refusing his special charges. There is no evidence tending to show that his wife was other than a pure, chaste woman.

Our Constitution (art. 1, sec. 4) is that no religious test shall ever he required as a qualification to any office of public trust, nor that anyone shall be excluded from holding office on account of his religious sentiments. The next section provides that no person shall be disqualified to give evidence in any court on account of his religious opinions, or for want of any religious belief. The next section provides that everyone has a natural and indefeasible right to worship God according to the dictates of his own conscience, and that no human authorities are in any case whatever to control or interfere with the rights of conscience in matters of religion. In Haymond v. Haymond, 74 Texas, 414, Haymond sought a divorce against his wife, among other things, because a band of religious fanatics composed chiefly of women crept into his home, lodged in the bosom of his family, poisoned the atmosphere thereof, blighted his life, alienated his wife’s affection, estranged his children and made desolate all that was once happy and comfortable, and other such like allegations as a ground for divorce. His wife specially excepted to all of these allegations as to her religious opinions and those of her mother. Our Supreme Court held: “In view of the

constitutional provisions securing to ‘all men the right to worship Almighty God according to the dictates of their own consciences,’ and asserting that ‘no human authority ought in any case whatever to control or interfere with the rights of conscience in matters of religion,’ we dó not think that questions as to the doctrines or practices of the sanctificationists ought to have been permitted to enter to any extent into the trial, and on objection they should have been eliminated from the pleadings and the evidence. It was defendant’s right to have any religious belief, or none, as best suited her. If her conduct as a wife was such as to furnish her husband grounds for divorce, the acts themselves would be the only proper subjects of investigation, without any regard to the religious convictions that led to them. If her conduct was blameless it was useless to allege and prove that her religious connections inculcated evil views and practices.” In 1 Bishop on Marriage, Divorce and •Separation, section 1657, in discussing the religious dogma of the churches and especially that of the Boman Catholic Church, it says: “but the law of our several States takes no cognizance of dogma or of the interpretation of the scriptures made by any particular sect.” In section 1762 it is said: “Vows made to an ecclesiastical superior or to God in pursuance of a religious faith have no more effect on our law than any other vows.” Again, in section 1753, it is said: “The doctrine most favored in our American courts . affirms our proposition that . . . only the ill conduct which would authorize a judicial separation or dissolution (of the marriage) will justify a desertion.”

Under these authorities, and in reason, appellant’s membership in the Catholic church and its doctrines and his religious belief, or want of it, and the fact that his wife prior to her marriage to him had been legally married to another and divorced before she married him, and the fact, if so, that her mother was of had character and kept assignation houses, if she did, could not and would not justify appellant’s abandonment of his wife or child and his refusal to support them or either of them, they being in either necessitous or destitute circumstances at the time.

We have deemed it unnecessary to take up separately appellant’s assignments. We have considered them all. What we have said disposes of all of them and none of his assignments present any reversible error.

The judgment will therefore he affirmed.

Affirmed.