A part of the court's charge is as follows: "You are further instructed as the law applicable to this case, that the evidence introduced in the trial of this case as to the character or reputation of the mother of Mrs. Ida May Trial or of the reputation of any house or houses controlled by said mother, or of the religious belief or religious convictions of the defendant, Peter J. Trial, or any evidence tending to prove the failure of Mrs. Ida May Trial to inform defendant of her former marriage does not constitute a legal defense or justification of the offense of which the defendant stands charged, but such evidence shall be considered by you, if at all, in mitigation of the punishment if you find the defendant guilty of the commission of the offense charged as to the desertion of the defendant's wife, Ida May Trial, as charged in the first count of the information.
"You are further instructed that such evidence is not to be considered by you in mitigation or justification of offense charged as to the alleged desertion of defendant's child, Madeline Trial, as charged in the second count of the information.
"You are further instructed that the court has permitted the introduction of the evidence to show that the defendant in this case two days after the alleged offense of abandonment filed suit against his said wife for divorce, in which suit defendant asks and prays for custody of both his said children. The court has further permitted the introduction of testimony tending to show that in March, 1915, shortly after the alleged abandonment and on subsequent occasions thereafter made or caused to be made propositions to his said wife by which said child would be cared for and the necessities of said wife cared for. This evidence has been permitted to be introduced for the purpose of throwing light on the act of abandonment and to show the intention of the defendant at the time he abandoned his said wife and child. Now, therefore, if you believe from all of the evidence that the defendant at the time of the alleged abandonment and at all times since the alleged abandonment, made or attempted to make, in good faith, provisions *Page 26 for the support of said wife and said child, then you should acquit the defendant."
There was a general verdict convicting appellant on an information containing two counts, one charging the wilful desertion of his wife, who was in destitute and necessitous circumstances, and without justification and the other making a similar charge with reference to his child.
Appellant complains of the part of the charge mentioned, and in testing the justice of his claim the evidence from his viewpoint must be considered. The charge should deal with issues raised by the evidence, leaving their solution, where the evidence is conflicting, to the jury. The evidence from appellant's standpoint went to show that at the time he married his wife she went under her maiden name, and that he was without knowledge of the fact that she had been previously married and divorced; that they were both members of the Catholic church; that he was informed by ministers of that religion and so believed that the marriage was illegal. There was also evidence that appellant's wife had been married and divorced, and that her sister had been divorced, and that her mother was a divorced woman and was engaged in the occupation of conducting an assignation house, and that the house she occupied at the time of the separation and other houses that she had previously occupied had the general reputation of assignation houses; that this business was conducted in the City of San Antonio. Appellant and his wife at the time of the separation lived at a point distant therefrom, and appellant, according to his testimony, learned of the character of the house that his wife's mother was keeping some four months prior to the separation. That he learned this while he and his wife were at her mother's house, the presence of various girls about the premises arousing his suspicions, and that he saw one of them in a compromising position with a visitor in the house, and upon investigation found out the character of the house, upon which he told his wife of what he had seen and did not care to have her visit there. That his wife replied that her mother was making money by obtaining from the girls in the house a division of their income. He also testified that his wife, after this information was given her and request made, continued to visit her mother. It appears also from her testimony that she did make visits to her mother. It was shown that while appellant's wife was in San Antonio, before she returned to her home on the occasion when the desertion is alleged to have taken place, that appellant made arrangements with a lawyer to bring suit against her for divorce, and to attain the custody and care of the child. This suit was filed about two days subsequent to the date of the alleged desertion. In it he did seek to obtain the care and custody of the child, charging that his wife was not a proper person to care for or have custody of the child.
The statute does not define the term "without justification." It manifestly leaves to the jury the determination of what facts will sustain the allegation that one wilfully and without justification deserted *Page 27 his wife. This being true, I can not assent to the correctness of the proposition that the trial court was authorized to withdraw from the jury the facts recited in the charge quoted and inhibit their use of them in determining whether appellant's desertion was wilful, or whether it was without justification. The suggestion is made that his wife was not aware of the character of business that her mother was conducting. If appellant's testimony was true she was aware of it, for he claims to have told her. This she denied, but the court instructed the jury that the character or reputation of the mother of Mrs. Trial, or the house or houses she controlled, was not a matter that they could consider in determining appellant's guilt or innocence, but could be considered only in mitigation of his punishment. From the evidence the general reputation of the mother of Mrs. Trial and the character of house that she kept was well established. As we understand the basis upon which the general reputation is admitted, the fact that the house had the general reputation mentioned was itself some evidence of the knowledge of Mrs. Trial that such reputation existed. This we understand to be the rule laid down by Mr. Wharton in his work on Evidence, page 478, section 254, wherein he cites numerous cases supporting the text. If Mrs. Trial, knowing that her mother was keeping an assignation house, participating in the revenues derived therefrom, and living in the house herself, and with the knowledge of the fact that the house had the general reputation as such, persisted in becoming a frequenter of the house, we are not prepared to sanction the view that, as a matter of law, this would not be a circumstance that might be weighed by the jury in determining whether or not her husband, after protest of this conduct, was justified in her abandonment. In determining whether the desertion of his wife was wilful, it is my judgment that all of the matters which are catalogued in the court's charge and withdrawn from the jury, except as bearing upon the mitigation of punishment, were matters that the jury should have been left free to consider. The fact that many of them were controverted and on conflicting evidence might have been determined against appellant by the jury, does not militate against the force of the contention that under our practice they were evidence of facts which the jury alone had the right to disregard.
There are bills of exception showing the details of offers of compromise which were made by appellant and which are referred to in the charge of the court quoted. In one of these it appears that appellant offered to prove that he offered to take the two children to the home of his father, who was in prosperous circumstances, and who had authorized appellant to assure his wife that he would set aside sufficient property to guarantee that the proposal made by appellant would be carried into effect and the children cared for, educated, and each furnished with a thousand dollars at their majority. Another proposition was, in substance, that appellant's father would place the two children in a Catholic school in San Antonio, the little boy at the time, and the younger child when she attained suitable age, she to remain with her mother in *Page 28 the meantime, and maintain them in school until they reached the age of twenty-one years, or so long as they would stay, or until the girl was married, and would give them each one hundred acres of land of the value of fifty dollars per acre, the appellant and his wife each having the privilege of visiting the children at their pleasure, subject to the observance of the rules of the school, and provide for them to spend their vacation with their parents, and appellant's wife to be furnished sufficient money to pay the necessary expenses to equip herself for teaching and school work. The court in qualifying these bills says that after sustaining the objection to the testimony, that the objection was withdrawn. It appears from the qualification that appellant's counsel claimed to have had no knowledge of this withdrawal, and the court says that he has no reason to doubt the truth of his statement. The bills show that the details mentioned were excluded and were never introduced, and from the charge quoted it appears that the learned trial judge regarded these offers as relevant on the question of intent, and in the charge so informed the jury. Being relevant upon that issue, it is manifest that the jury, having information only that a proposition had been made, and remaining in ignorance of its terms, or the circumstances under which it was made, was not in a position to determine its good faith, or measure its weight as they would have been had the evidence excluded been before them.
At the time appellant arranged to bring the suit for divorce and for the custody of his children, he and his wife were in San Antonio, where her father resided. Before the suit was filed she returned to her home and appellant abandoned her. He testified that, "When she came back to Hobson on the 11th of February I made provision for her support and maintenance while there. I told my father and my brother Joe to see that she was taken care of, and would get a way to go back to San Antonio." Mrs. Trial testified that after she learned that her husband intended to abandon her she went to his father's house. She said: "Old man Trial did not offer me the money. He told me to go to the hotel, and I told him I was afraid to go to the hotel, and he said he would pay for the hotel." She also said that appellant's brother gave her three dollars, which she used in returning money that she had borrowed with which to pay her way to San Antonio. Appellant offered evidence, in substance, to the effect that his wife's father lived in San Antonio and was in good circumstances, and offered other evidence from which the jury might infer that her father was willing that Mrs. Trial and her children should live in his household. It is doubtless true that appellant could not discharge his obligation to support his wife and children by proving that they could live upon the bounty of another. I am of the opinion, however, that under the circumstances this evidence should have been received for such use as the jury might see proper to make of it in determining whether or not the appellant had wilfully abandoned his wife and children and left them in destitute or necessitous circumstances; at least in connection with other facts of the *Page 29 case it might have had weight with the jury in mitigating the punishment. This conclusion is suggested in reading the report of cases construing the statute in question, among them Windham v. State, 80 Tex.Crim. Rep., 192 S.W. Rep., 248; Verse v. State, 81 Tex.Crim. Rep., 193 S.W. Rep., 303; Irving v. State, 73 Tex.Crim. Rep..
Because of the various matters referred to above I entertain the view that appellant's conviction is the result of a trial in which he was denied the legitimate use of facts bearing upon his conduct which might, if the jury had been permitted to receive and consider them, have brought about a different result. I, therefore, believe that the motion for rehearing should be granted, the affirmance set aside, and the judgment of the lower court reversed and remanded.
Reversed and remanded.
June 28, 1918.