charging the jury:
The statute upon which the indictment in this case is based provides that
“Any husband who shall, without just cause, desert and wilfully neglect or refuse to provide for the support and maintenance of his wife in destitute or necessitous circumstances * * * shall be guilty of a misdemeanor.” Rev. Code 1915, p. 1421, § 3034.
It is not denied by the husband that he has not provided for the support and maintenance of his wife, since she left him, and it is not denied by the wife that her husband did provide for her support and maintenance while she remained with him.
The real question, therefore, for the jury to determine is • whether the defendant has, without just cause, wilfully neglected or refused to provide for the support and maintenance of his wife since she left him; and that necessarily raises this further question:
Was the wife justified, under the law, in leaving and remaining away from her husband? To assist you in reaching a conclusion on this point I will endeavor to instruct you briefly respecting the relative duties of husband and wife living together.
It is the duty of the husband as the head of the household to provide for the support and maintenance of his wife in such manner as his condition and circumstances will reasonably permit. And the husband is entitled to the comfort, society, assistance and services of his wife unless he forfeits his right thereto by such treatment as will justify her leaving him.
*151The wife has no right to leave her husband’s home and expect him to support and maintain her elsewhere simply because she is disappointed and dissatisfied, or because there have been quarrels and differences between them. There are not very many homes free at all times from such experiences.
The complainant seeks to justify her action in this case on the ground of her husband’s cruel treatment, and it is necessary for the court to tell you what constitutes such treatment. Cruelty has been defined to be, any conduct in one of the married parties which, to the reasonable apprehension of the other, or in fact, renders cohabitation physically unsafe to a degree justifying a withdrawal therefrom.
Mere austerity of temper, rudeness of language and even occasional sallies of passion, do not amount to legal cruelty.
But if you believe from the testimony that defendant’s treatment of his wife was such as to render continued living with him physically unsafe, she was justified in leaving him, and your verdict should be guilty, provided you also believe that she was in destitute or necessitous circumstances at the time she filed her complaint. Her leaving would, in that case, be caused by the husband’s legal fault, and his failure to support and maintain her would be without just cause. But if the husband’s treatment of his wife was not such as to render continued living with him unsafe, then the wife has no right to leave his home and refuse to return. Under such circumstances, the husband has just cause to refuse to support and maintain his wife and your verdict should be not guilty.
If you believe from the testimony that the wife was not, at the time of making her complaint, in destitute and necessitous circumstances, your verdict should likewise be not guilty because under the statute unless the wife is in such condition she cannot compel her husband to support her. But while this is so, the court instruct you that the fact that a child of the wife gives the mother shelter and food does not relieve her from being in destitute and necessitous circumstances within the meaning of the law.
*152“A wife is in necessitous circumstances * * * when she does not have property or money available for such necessities or ordinary comforts of life as her husband can reasonably furnish. * *
' ‘The essence of the act is that a man shall not be allowed to shift the burden of supporting his wife * * * upon others under no obligation to bear it. * * * 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 stangers, so that she does not in fact suffer from 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.”
Donaghy v. State, 6 Boyce, 467, 100 Atl. 696.
In conclusion I think it proper to say that even though the wife was not justified in leaving her husband’s home, yet if she should change her mind and in good faith seek to return, it would be the defendant’s duty to receive her; and if he refused to do so he would then be liable for her support and maintenance in another action.
The jury disagreed.