Appellant complains in his motion for rehearing that the facts do not show that he abandoned *Page 6 his wife but that on the contrary she abandoned him; and that the trial court should have given a special charge submitting to the jury this issue. Also that he and his wife had an agreement for a temporary separation, such condition to prevail until they could find a place where they could move to themselves — and that the trial court erroneously refused to give a special charge submitting this issue.
It appears from the record that a complaint charging seduction was lodged against appellant in June, 1924, and an examining trial had on June 16th, following which on the same day appellant and prosecutrix were married. They spent a day at her home, and three days at his mother's house, then a little while at her home, and then some weeks at the home of his mother. In July, 1924, according to the testimony of prosecutrix, they went up into Williamson County to try to rent a place for 1925, but did not succeed in finding one, and that they came to an agreement. Her testimony regarding this is as follows:
"Bill and I did have an agreement that I would go back to my home and stay there and he would stay there until we could find a place to move on by ourselves; yes, sir. That was a friendly agreement. The agreement was that I would live with my people and he would live with his people until we found a place to move on together; yes, sir, that was the agreement."
The date of this agreement is not given, nor is there an explanation as to what time it was to cover, nor when it should end. The circumstances were unfortunate. Prosecutrix was one of a large family living in a comparatively small house. The complaint charging appellant with seduction was filed by the father of prosecutrix, and these facts might be looked to as furnishing reasons for unwillingness on the part of appellant to live with her people. He had rented land from his mother for the year 1924 and was living in her home. Prosecutrix swore that his mother was ugly to her, did not speak to her, and made severe statements about her to appellant in the presence of prosecutrix, all of which might account for her reluctance to live in his home. Appellant was a farmer and a farmer can hardly leave his crop in June, and houses to rent at that season are not ordinarily found in the country — hence the reasonableness of the testimony of prosecutrix as to the said agreement. Some time in the fall of 1924 prosecutrix was taken before the grand jury, and here *Page 7 testified that she then begged them not to indict appellant, and it seems they did not, for the indictment herein was returned in April, 1925.
Prosecutrix swears without contradiction that their baby was born in November, 1924, and that in December of said year and also in January, 1925, she sent to appellant by registered mail letters telling him that she wished to live with him but received no reply. He had not been to see her or their baby from the time it was born until this trial in October, 1925, nor had he contributed to her or the baby anything in the way of money, medicine, clothes, food or paid them the slightest attention. She and her child during this time lived at the home of her parents, a few miles from where appellant lived. In addition, it was in testimony that appellant said in February, 1925, that he would not live again with his wife; that he had used her all he wanted to, was going to get a divorce and marry another girl that he had spotted. Under these facts we are unable to agree that there is not a "scintilla of proof" that appellant refused to live with his wife prior to the date of this indictment, or that it was error for the trial court to refuse the special charges referred to. We can readily see some reason for the agreement for temporary separation made necessary by the situation of appellant and prosecutrix in the summer of 1924, but nothing suggests a continuance of such condition in 1925, nor at the time of this trial. Appellant did not testify. It being before the court and jury without dispute that prosecutrix had written him in December, 1924, and in January, 1925, signifying her readiness and willingness to live with him, presumably at any place he might select; also by Mr. Staphin that in February, 1925, appellant told him that he would not again live with her; also that up to October, 1925, he had not been near her, nor helped her, nor made any effort to find a place for her to live — it was not error to refuse a charge to the effect that if the jury found appellant did not leave his wife but that they separated in pursuance of a peaceable agreement to live apart until they could find a place "mutually satisfactory," appellant would not be guilty of abandoning his wife or unlawfully living apart from her. There was no testimony that the parties agreed to live apart until they could find a place "mutually satisfactory." Had there been such an agreement appellant could have excused himself from such derelictions all the rest of his life on the ground that no such place could be found. *Page 8
Those special charges setting forth that under the law the husband has the right to designate the place where the wife shall live, seem uncalled for by any testimony in this record. In Baskins v. State, 171 S.W. Rep. 723, this court said that a man has no right to designate the home of his parents as his, and, under circumstances showing treatment unendurable to the wife, to compel her to live there with him. Nothing in this record supports the proposition that from the summer of 1924 to October, 1925, when this trial was had, appellant had ever designated any place as a home for his wife and child and himself.
The motion for rehearing will be overruled.
Overruled.