The appellant was convicted in the District Court of Lee County for the offense of abandonment after seduction and marriage, and his punishment assessed at five years in the penitentiary. *Page 3
This prosecution is based upon Art. 507, 1925 Penal Code (Art. 1450, Vernon's Ann. P. C.). The appellant moved the court to quash the indictment, based upon the foregoing statute, alleging that same is unconstitutional and in conflict with Art. 1, Secs. 14, 16 and 28, of the Constitution of this state, for the reason that this statute is ex post facto, retroactive, and permits the placing of a person in jeopardy twice for the same offense, and transgresses that part of the Constitution which provides that no suspension of law in this state shall be exercised except by the legislature, and it is also contended that this article attempts to give to the officers and courts of the state the right to suspend the operation of the statute, supra, on seduction. We are of the opinion that the appellant's contention is not well founded, and that said statute is not in violation of any of the constitutional provisions referred to. Thacker v. State, 62 Tex.Crim. Rep., 136 S.W. 1095; Qualls v. State, 71 Tex.Crim. Rep., 158 S.W. 540.
The record discloses that the appellant was charged before a justice of the peace, sitting as a magistrate's court, with the offense of seducing Miss Hattie Reuther, and that immediately after the examining trial was over he obtained a marriage license and married the prosecutrix; that he spent one night with her at the home of her parents, then took her to the home of his mother, a widow, and lived with her there for three days, after which he took her back to her parents' home and left her, he returning to his mother's. It appears that it was not agreeable with his mother for the appellant's wife to live there, and that he did not desire to live with his wife's parents. It also appears that the appellant stated to his wife that they would remain living with their respective parents until he could secure a place where they could live together as husband and wife. In the course of events, a child was born, and they continued to live separate and apart. A short time prior to the confinement of the prosecutrix, she wrote for the appellant to come and see her, and it appears that he went, but regardless of her insistence that he remain and look after her, he only stayed a few minutes, and then left, and that she could never thereafter prevail upon him to live with her again. It was the contention of the state that the appellant married the prosecutrix in order to avoid the results of a prosecution for seduction, and abandoned her thereafter without cause or provocation. It appears to have been the contention of the appellant, although he failed to testify, that there was an understanding *Page 4 between him and his wife that they would live with their respective parents until he could gather his crops and make satisfactory arrangements for a place upon which they could live together. The record discloses that the state introduced witnesses showing that the prosecutrix's father offered a house, land and team to the appellant if he would come and live with his wife, and that other people had talked to the appellant, advising him to take his wife and live with her, but that he stated to them that he would not do so. It is also shown that appellant's wife persistently insisted that he come and take care of her, but that he ignored her importunities, and had never been to see her or the baby after its birth, and refused to furnish her with a doctor, medicine, clothing, or support of any kind.
The court charged fully the law of seduction and abandonment after marriage, and apparently without any serious objections thereto upon the part of appellant's counsel, except insofar as the court failed to give in charge to the jury his special charges Nos. 2, 3 and 4. Special charge No. 2 was to the effect that if the appellant and his wife had an agreement to live apart until they could find a place mutually satisfactory, and in pursuance thereof separated under such agreement, to acquit the defendant. Special charge No. 3 was to the effect that if the appellant did not abandon his wife, but that she abandoned him, and such abandonment was not caused by cruelty on the part of the defendant, then he would not have to follow her, but had a right, as the head of the family, to select the place at which he and his wife should live, and if the jury believed such to be true, to find the defendant not guilty. The remaining special charge requested was substantially to the same effect as No. 3. We are of the opinion, under the facts of this case, that it was not error to refuse these charges.
Bill of exceptions No. 3 complains of the action of the court in permitting the appellant's wife, while testifying as a witness, to hold the baby in her arms during said time, because, it is alleged, there is no law authorizing two people to occupy the witness stand at the same time, and to permit the mother to hold same in this instance inflamed the minds of the jury against the appellant. We are of the opinion, under the ruling of this court in the case of Rhea v. State, 96 Tex. Crim. 11, 255 S.W. 757, that this bill shows no error. Also see Snodgrass v. State, 36 Tex.Crim. Rep.. *Page 5
Bill No. 4 complains of the action of the court in permitting the prosecuting witness to testify, in effect, that appellant's mother told him to take her, the prosecutrix, back to her home. This bill, as presented, shows no error, and especially in view of the fact that the court, at the instance of appellant, charged the jury that the acts and declarations of his mother would not be binding upon him, and that they could not consider same unless appellant acted with her in said acts or declarations.
Bill No. 5 complains of the action of the court in permitting the state to prove by the witness, Paul Wernecke, a constable, that the mother of the appellant insisted that he shoot her, or let someone else have his gun for the same purpose, so that she could get out of trouble. It appears that this testimony was offered by the state in rebuttal of the testimony of appellant's mother to the effect that she was not opposed to the marriage of her son with prosecutrix, and, in fact, was willing for him to do so.
Bills 6 and 7 complain of the action of the court in permitting the state to introduce evidence to the effect that the appellant stated that he was not going back to live with his wife. We think this testimony was admissible to support the state's theory on the issue of abandonment.
Bill No. 8 complains of the action of the court in permitting the father-in-law of appellant to testify that he offered a house, land and a team to the appellant after the marriage, which offer appellant refused. We think this evidence was properly admitted on the question of abandonment and the intent of the appellant.
We have examined each and all of the appellant's bills of exception and have carefully examined the entire record, and are forced to the conclusion that there was no error committed in the trial of this case which would warrant a reversal of same. It is therefore ordered that the judgment of the trial court be in all things affirmed.
Affirmed.
The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.