author: PRENDERGAST, J.' MORROW, J.

text:
    TRIAL v. STATE.
    (No. 4563.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1917.
    On Motion for Reheating, June 28, 1918.)
    1. Husband and Wots @=>314 — Abandonment — Justification—Questions foe Juey.
    In a prosecution for abandonment, it was error to withdraw from the jury as matter of justification the reputation of the wife’s mother and of houses which she kept, the statute leaving the determination of justification to the jury.
    2. Husband and Wife @=>313 — Justification — Evidence—Geneeal' Reputation.
    In a prosecution for wife abandonment, which the husband sought to justify by showing that the wife’s mother kept a reputed assignation house, the general reputation of the house was of itself some evidence that the wife knew of such reputation.
    3. Ceiminal Law @=>814(3) — Insteuctions —Evidence Excluded.
    In a prosecution for abandonment of wife and child, where evidence as to details of offers to support was excluded, and on objection afterwards withdrawn without knowledge of accused, who did not again offer it, and the court charged that the jury might consider such offers on the question of intent, as the evidence was relevant and the jury could not determine the good faith of the offers or their weight it was cause for reversal.

      4. Husband and Wdte <&wkey;313 — Abandon-mbnt^-Evidbnce.
    In a prosecution for abandonment of wife and child, evidence that the wife could have received support from defendant’s father was improperly excluded; such evidence being pertinent on the question of intent and in mitigation.
    Prendergast, J., dissenting.
    Appeal from Karnes County Court; F. S. Schleicher, Special Judge.
    Peter J. Trial was convicted of abandonment of his wife and child, and he appeals.
    Reversed and remanded on motion for rehearing.
    Bell & Brown, of Karnes City, and A. J. Bell, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.'

The information based on the complaint is in two counts. One alleges that appellant on or about February 11, 1915, did unlawfully, willfully, 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, willfully, 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 Acts 1913, p. 188, c. 101, § 1 (article 640a, Vernon’s Ann. Pen. Code 1916), to this effect:

“That any husband who shall willfully or without justification desert, neglect or refuse to provide for the support and maintenance of his wife, who may be in destitute or necessitous cm cumstances, or any parent who shall willfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his or her child or children under the age of 16 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 willful or without justification, not willful 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 2Yz years old, and the other an infant girl 6 weeks old at the time he cruelly deserted her and his infant girl. They lived at Hob-son, 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, tier 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 4 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 10 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 timo he mar•ried 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 findings 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 2 days about the middle of October, 1914, just 2 months before the birth of their last child. With his consent she went to her father’s to be confined when this child was bom. 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. Tire little infant child became quite sick. It seems they had to send off to Karnes Oity, or some other place several miles away, for a physician to attend this infant. It getting no 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 4 or 5 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 O. 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 2 or 3 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 baby. 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 some one, and sent the cheeks 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 $3 to buy her ticket. Appellant’s father or brother, one or the other, later sent her $3 for (his 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 25, 1915. This case was not tried until more than 2 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 house 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 that 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. Section 2, Acts 1913, p. 189; Vernon’s Ann, Pen. Code 1916, art. 640b; Magee v. White, 23 Tex. 192; Callahan v. Patterson, 4 Tex. 66, 51 Am. Dec. 712; 21 Cyc. 1151; Utsler v. State, 195 S. W. 856; Pippins v. State, 79 Tex. Cr. R. 525, 187 S. W. 213; Walters v. Niederstadt (Mo. App.) 194 S. W. 514. The fact that some one 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 some one 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. 215, 49 L. R. A. (N. S.) 588, which was quoted and approved by the Supreme Court of Tennessee in State v. Latham (Tenn.) 188 S. W. 536, 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 21 years of age his father would give each one of them $1,000 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, but 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 2 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. No prosecution can be had for any offense committed, or to be committed, in future. The offense must necessarily be a past offense. Neither 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 any one; 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 6 weeks old baby at her breast. No 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 6 weeks before the trial of the offense therein charged to have been committed, and only some 12 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 25th, 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 abandon.ment prior to such time. For this reason all testimony should have been limited to a time preceding the filing of the information.”

In this case the fact, if so, that appellant nearly 2 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, not 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 thajt 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 willfully and without justification abandoning her, and to acquit him.

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

Our Constitution' (article 1, § 4) is that no religious test shall ever ' be required as a qualification to any office of public trust, nor that any one 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 Ms religious opinions, or for want of any religious belief. The next section provides that every one has a natural and indefeasible right to worsMp 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 Tex. 414, 12 S. W. 90, 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 Ms 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 do not think that questions as to the doctrines or practices of the sanetifi-cationists ought to have been permitted to enter to any extent into the trial, and on objection they shonld 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, § 1657, in discussing the religious dogma of the churches and especially that of the Roman 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 bad 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 be affirmed.

On Motion for Rehearing.

MORROW, J.

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, Madaline 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 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 willful 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 tire 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 división 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 appeliant 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 seels 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 willfully and without justification deserted his wife. This being true, I cannot 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 willful, 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, p. 47S, § 254, wherein he citeé 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 mot 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 willful, 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 ifact 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 eared for, educated, and each furnished with $1,000 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 the meantime, and maintain them in school until they reached the age of 21 years, or so long as they would stay, or until the girl was married, and would give them each 100 acres of land of the value of $50 per acre, the appellant and his wife ea.ch 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, 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 m3 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 $3, 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 willfully abandoned his wife and children and left them in destitute or necessitous circumstances ; at least in connection with other facts of the case it might have had weight with the jury in mitigating the punishment. This conclusion is suggested in reading the report of eases construing the statute in question, among them Windham v. State, 192 S. W. 248; Verse v. State, 193 S. W. 303; Irving v. State, 73 Tex. Cr. R. 615, 166 S. W. 1166.

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 af-firmance set aside, and the judgment of the lower court reversed and remanded.

PRENDERGAST, J., dissents. See 205 S. W. 725.
      <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    W. R. CASE & SONS CUTLERY CO. v. CANODE.
    (No. 1371.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 12, 1918.)
    1. Innkeepers <@=>11(3) — Liability Aá Bailee.
    An innkeeper is under duty to exercise extraordinary care to prevent the loss of property committed to his custody by a guest.
    2. Innkeepers <@==>11(12) — Liability as Bailee — Exercise op Care— Sufficiency of Evidence.
    In action against innkeeper for loss of traveling salesman’s grip containing manicure sets, evidence held not to show an extreme degree of care in protecting-the grip.
    3. Innkeepers <@=>11(12) — Liability of Bailee — Questions of Fact.
    In suit against innkeeper for loss of traveling salesman’s grip, where it appeared that when thief was arrested part of goods were recovered, but district attorney kept them to use in evidence, whether innkeeper was liable for loss of worth of goods recovered, or whether they were recovered within a reasonable time, and his liability was simply for delay in delivering them, were questions of fact.
    4. Innkeepers <@=>11(3) — Liability as Bailee — Insurer.
    An innkeeper is not an insurer of the safety of his guest’s property intrusted to him, though under duty to exercise extreme care.
    5. Innkeepers <@=^11(12) — Liability as Bailee — Prima Facie Case — Burden of Proof.
    In suit against innkeeper for loss of salesman’s grip, proof of delivery and failure to redeliver on demand entitled plaintiff prima facie to recover, and, if innkeeper desired to avoid liability by showing his extreme care, he had burden to allege and prove it.
    6. Pleading <@=>378 — General Denial — Effect.
    A general denial only put plaintiff on proof of the allegation of his petition in order to make a prima facie case.
    7. Trial <@=>352(4) — Submission of Issue — Pleadings.
    The trial judge should not submit an issue not raised 'by the pleadings.
    8. Courts <@=>122 — Jurisdictional Amount.
    The amount of plaintiff’s demand at the time of filing suit fixes the jurisdiction of the court, in the absence of fraudulent intent in making the allegation.
    9. Innkeepers <@=>11(12) — Liability as Bailee — Damages.
    In action against innkeeper from whose custody salesman’s grip was stolen, plaintiff company owning grip was entitled to recover full market value of the article and its contents unless returned.
    10. Innkeepers <@=>11(12) — Action Against— Liability.
    In action against innkeeper for loss of traveling salesman’s grip from his custody, letter of district attorney' notifying plaintiff company owning grip that goods recovered from thief were ready to be redelivered, was admissible on issue of delay in delivery, and to show extent of liability.
    Appeal from Potter County Court; T. W. McBride, Judge.
    Action by the W. R. Case & Sons Cutlery Company against H. P. Canode. From judgment for defendant, plaintiff appeals.
    Reversed, and cause remanded.
    Kimbrough, Underwood & Jackson and D. I. Hutchinson, all of Amarillo, for appellant. Yeale & Lumpkin, of Amarillo, for appellee.
   HALL, J.

Appellee is an innkeeper in Amarillo. One R, A. Chitwood, drumming for appellant company, registered at appel-lee’s hotel about the 28th day of May, 1917, and checked Ms grip, cohtaining manicure sets of the value of $252.25j His grip was checked on Saturday, and dn the following Monday, when called for, it was not found. Subsequent developments showed that it had been stolen by a negro boy who had occasionally worked at the hotel, but who was not employed in or about tbe building at tbe time. of tbe tbeft. Appellee’s answer contains several defenses unnecessary to be stated bere.

Tbe first assignment is based upon tbe refusal of tbe court to direct a verdict in appellant’s favor. In the case of Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218, Judge Roberts states tbe liability of innkeepers for tbe loss of property of tbeir guests in tbe following language:

“He is liable for any loss of property committed to Ms keeping, wMch any care or vigilance or diligence on Ms part could have prevented. * * * The diligence used was ordinary, but not extreme; and therefore, if be were an innkeeper, he was liable. When property committed to the custody of an innkeeper by his guest is lost, the presumption is that the innkeeper is liable for it, and he can relieve himself from that liability by showing that he has used extreme diligence. What facts will excuse him is a question perhaps not very web settled; but it is well settled that he cannot excuse himself without showing that he has used extreme care and diligence in relation to the property lost.”

In tbe subsequent case of Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec. 654, Bell, J., approves a charge wbicb states tbe liability of innkeepers in tbe following language;

“Lándlords of public hotels for transient boarders or travelers are held to strict liability for all losses of such ordinary articles of personal property or money as are carried about the persons of travelers and which are lost in the tavern. They are held liable for the value of such articles lost or stolen at the tavern unless it is made to appear that the loss did not result from any want of care or neglect, or any insufficiency of means for protection, on the part of the defendant or his servants.”

It is stated in 14 R. C. L. p. 516, § 19:

“It is also quite generally agreed that for all thefts from within or unexplainable, whether committed by guests, servants, or strangers, the innkeeper is answerable; and while some courts repudiate the general rule that he is an insurer of the safety of goods brought by guest, yet in the case of loss by theft they refuse to exonerate him, although it is an unavoidable accident, not due to any fault or negligence of his.”

Appellee testified that be bad been in tibe hotel business about 16 years. He described tbe arrangement of tbe ground floor of bis hotel, showing that tbe baggage room was north of tbe clerk’s counter; that tbe regular checkroom was separate from the office and across a narrow ball. He stated, however, that tbe check room was easily accessible from tbe office. On direct examination be stated:

“We use every precaution possible to take the very best care of it. The check room is so situated with reference to my office that I can practically see what is going on about there. It is right within a very short distance of it.”

On cross-examination be stated be bad no personal knowledge of the deposit of the grip in question except what Chitwood told him; that tbe grip was checked in tbe regular way, and from tbe time be went into tbe check room It received just tbe care received by every one’s baggage; that tbe transaction was in no way different from such transactions on other occasions; that be bad no personal knowledge of the door being left open. He further stated that be baa been in the hotel business for sixteen years, and could not recall another instance where be bad been sued for tbe loss of a grip. This evidence falls short of showing an extreme degree of care in protecting the grip in question. Tbe fact that it was stolen by a negro, who was not an employé in the hotel, and bad no right to be there, and the further fact that be must have entered tbe baggage room through an open door, when appellee testified that this door could have been seen from tbe clerk’s desk, shows a want of even ordinary care. It negatives tbe idea that any watch was kept over tbe baggage room, and, in our opinion, is wholly insufficient to relieve ap-pellee of liability.

Tbe court, however, should not have given tbe peremptory instruction requested by appellant, for tbe reason that tbe record discloses the fact that.part of tbe goods, to tbe value of $115, were recovered when tbe thief was arrested within a few days after the tbeft. It appears that upon tbe arrest of tbe thief tbe district attorney took tbe grip with the remaining manicure sets in bis possession and held them to be used as evidence in the trial of tbe thief; that this trial resulted in tbe conviction of tbe negro about tbe last day of October, at which time it appears that appellant might have again obtained possession of tbe remainder of tbe goods without any controversy. “A mere delay in delivery does not amount to conversion where it was not willful, nor under such a circumstance as to amount to a denial of ownership or right of possession.” 6 O. J. p. 1143, § 97. “Where the time of redelivery is not fixed by agreement or by tbe nature of tbe object to be accomplished, redelivery must be made within a reasonable time after demand; tbe question of what time is reasonable being determined by tbe circumstances of each particular case.” Id. “If a time for tbe return of tbe property is not fixed by agreement or by the nature of tbe object to be accomplished, the bailee must, after a reasonable time, redeliver it wbenever be is called upon to do so.” R. O. L. p. 114, § 37. It then became a question of fact whether, under all tbe circumstances, appellee was liable for tbe loss of tbe $115 worth of goods recovered, or whether they were recovered within a reasonable time and bis liability was simply for delay in redelivering them. What is bere said also disposes of tbe second assignment.

According to the rule as stated in Howth v. Franklin, supra, an innkeeper is not an insurer of bis guest’s property, and tbe court did not err in refusing special charge No. 3.

Appellant alleged tbe delivery of tbe grip and its contents to appellee, and a failure to redeliver upon demand. There is no allegation of negligence in tbe petition, but tbe right to recover is based upon tbe liability of an innkeeper as stated above, Proof of these facts entitled appellant prima facie to recover, and a general denial only put appellant upon proof of its allegation. If appellee desired to avoid liability by showing that he had used extreme care, it was incumbent upon him to allege and prove that fact. Such proof was not admissible under the pleadings, and we think the court erred in submitting that issue to the jury, although evidence upon it was admitted without objection. The charge should not submit an issue not raised by the pleadings. We agree'with appellant in the contention that the burden of proof to show extreme care and diligence was upon appellee. The evidence shows that appellant was engaged in interstate commerce, and the charge with reference to appellant’s being engaged in interstate commerce should not have been given. The amount of plaintiff’s demand at the time of filing suit fixes the jurisdiction of the court, and upon the face of- the petition appellant was entitled to recover at that time the full market value of the grip and its contents. No fraudulent intent was shown in making the allegation. We think the letter of the district attorney notifying appellant that the goods were ready to be redelivered was admissible upon the issue of delay in delivery and to show the extent of appellee’s liability.

The judgment is reversed and the cause remanded.
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