
    REDMOND v. STATE.
    (No. 3683.)
    (Court of Criminal Appeals of Texas.
    Nov. 10. 1915.
    On Motion for Rehearing, Dec. 8, 1915.)
    1. Criminal Daw @=419, 420 — Evidence — Hearsay.
    In a prosecution for wife desertion, where the wife testified that after the' desertion she knocked at the door of defendant’s parents’ home, and a Mexican came, who told her that defendant’s father said she (the wife) could not see defendant, such testimony was inadmissible, as being a matter occurring between third parties with which ■ defendant was unconnected.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. @= 419, 420.]
    2. I-Iusband and Wife @=5313 — Abandonment — Evidence—Relevancy.
    In a prosecution for wife desertion, where the defense expected to show that the wife had left the husband, instead of the husband the wife, the defense’s question to the wife whether she still loved defendant should have been allowed as relevant.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. @=313.]
    3. Husband and Wife @=313 — Abandon-meni^-E'videnoe — Relevancy.
    In a prosecution for wife desertion, where the defense attempted to show that the wife had not instituted proceedings until the defendant had refused to pay a “bill” composed' of various items, aggregating over $2,400, which she presented to him, defendant’s question to the wife on cross-examination whether, if the bill had been paid, she would have taken the matter before the grand jury, was improperly excluded.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dee. Dig. @=313.]
    4. Witnesses @=268 — Cross-Examination.
    In a prosecution for wife desertion, where the wife testified that the desertion occurred in Maryland, and not in the county of trial, defendant should have been permitted to go into the question on cross-examination of why she did not institute proceedings against him in Maryland.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dee. Dig. @= 268.]
    5. I-Iusband and Wife @=313 — Abandonment — Evidence—Relevancy.
    In a prosecution for wife desertion, testimony of the wife as to what a minister whom she had consulted had advised her to do was inadmissible as concerning a matter, occurring between third parties, of which defendant had no knowledge, and with which he was not concerned.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. @=313.]
    6. I-Iusband and Wife @=313 — Abandonment — Evidence—Relevancy.
    In a prosecution for wife desertion, where the wife testified that her visit to her relatives before the desertion was caused by defendant’s mother and sister treating her badly, letters of the wife to the mother and sister thereafter written, most affectionate in character, and employing endearing terms, should have been admitted in evidence as tending to rebut the state’s testimony that the wife left her husband’s home and went to her relatives because the husband’s family were making life uncomfortable for her.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. @=313.]
    7. Criminal Law @=108 — Venue—Locality of Offense.
    Under Acts 33d Leg. e. 101, § 4, providing that the offense of wife desertion shall be held to have been committed in the county in which the wife may have been when the abandonment occurred, or in the county in which the wife had resided for six months next preceding the filing of the complaint or indictment, where, after marriage, defendant brought his wife to his father’s house, where they lived for about a month, when the wife went to Pennsylvania on a visit, her home continuing to be with defendant and his parents, defendant could be convicted of wife desertion in the county of his parents’ residence under an indictment charging failure and refusal to provide for his wife, such failure being initiated by his desertion of the wife in a railroad station in Baltimore, Md., as the wife’s home was continuously at the residence of defendant’s parents from the time she moved there with her husband, so that her abandonment under the statute took place there.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 220-226, 230, 231, 234; Dee. Dig. <@=>108.)
    8. Husband and Wife <@=>314r — Abandonment — Tbiai>-Instbuotion.
    In a prosecution for wife abandonment, where the testimony raises the issue that the wife, when making a visit prior to the alleged abandonment of her by the husband, intended to abandon him, the issue should be presented to the jury in the charge.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1111; Dec. Dig. <@=>314.)
    9. Ckiminal Law <@=>665 — Tbial—Exclusion of Witnesses — Exception of Pbosecutkix —Discketton of Coobt.
    In a prosecution for wife abandonment, where the rule excluding witnesses was invoked, but state’s counsel requested that the prosecuting witness be excepted therefrom and be permitted to remain to assist him, the exception of the wife from the rule by the court was not an abuse of discretion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1549-1566%; Dec. Dig. <@=>665.)
    On Motion for Rehearing.
    10. Husband and Wife <@=>313 — Abandonment-Residence of Wife — Sufficiency of Evidence,
    In a prosecution for wife desertion, evidence held to show that the wife’s residence was in the county where the prosecution took place from shortly after the marriage, so that the venue of the case was properly laid under Acts 33d Leg. c. 101, § 4, providing that wife desertion is committed in the county in which the wife resides at the time of the abandonment.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. <@=>313.)
    Davidson, J., dissenting.
    Appeal from Nueces County Court; Walter F. Timón, Judge.
    Lawrence Redmond was convicted of willfully deserting his wife, and he appeals.
    Judgment reversed, and cause remanded.
    Jno. C. Scott and Geo. C. Westervelt, both of Corpus Christi, and Ramsey, Black & Ramsey, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of willfully deserting his wife, his punishment being assessed at a fine of $250 and 60 days’ imprisonment in the county jail.

The Acts of the Thirty-Third Legislature, at page 189, uses this language with reference to wife desertion:

“An offense under this act shall be held to have been committed in the county in which such wife, child or children may have been at the time such abandonment occurred, or in the county in which such wife, child or children shall have resided for six months next preceding the filing of the complaint, information or indictment.” Chapter 101, § 4.

The unquestioned and undisputed evidence shows: That defendant and his wife were married in Panama, and came to Corpus Christi, where Dr. Henry Redmond and family resided, reaching there about the middle of August, 1914. For reasons not necessary now to discuss she desired to go to Pennsylvania, where her mother and relatives resided. To this her husband was opposed. Finally, however, at her earnest solicitation he did agree, and she left Corpus Christi, going to Pennsylvania along about the middle of September to engage in some character of work, if not as a trained nurse, closely connected with it. She says she and her husband were on the friendliest terms, and he was very lover-like in his attentions. In December he was at Baltimore attending a medical college with a view of obtaining his diploma as a practitioner in the profession. She went to Baltimore and spent a few days with him, and they purposed leaving there about the middle of the month. In going to the depot they seemed to have anticipated the schedule time of the train. While about the depot she says her husband disappeared. She waited until about 2 o’clock the same night, and took the train to Philadelphia. That shortly afterward from New Tork her husband commuijicated with her. About the 20th of January, 1915, she came to Corpus Christi. That she had wired her husband to meet her at the train, which he failed to do. She went to the hotel and called him up next day. He did not obey her summons. This was about the 21st of January. The grand jury returned this bill of indictment on the 24th of February, 1915. Testifying in relation to the fact of desertion, she says her husband deserted her at Baltimore, Md., and that the charge in the indictment that he deserted her in Corpus Christi was a mistake; that he did not do so, but deserted her in Baltimore, Md. After she left Corpus Christi, she was not in Nueces county until January 20 or 21, 1915.

Referring to the statute quoted, it will, be seen that a desertion, if a desertion at all, occurred a long time before the expiration of six months, and in fact was only within thirty-five days after her arrival at Corpus Christi or upon reaching Texas. So from any viewpoint this indictmunt could not be sustained. He did not desert her in Texas, and, if this indictment could be sustained from any standpoint, she would have to live in Nueces county six months prior to the prosecution. As the writer understands this record and the facts, if such was a desertion, it was on her part, and not his. There is evidence to the effect that her intention when she left her husband in September may have been a permanent separation on her part. The evidence goes to show that her husband liad nothing, and was dependent upon Ms father for a support, and after they reached Corpus Christi in August until she left in September they were supported by the father, Dr. Redmond. At the time appellant did not even have his license to practice medicine. This she makes evident, as does her mother-in-law, Mrs. Henry Redmond. Her return to Corpus Christi seemed based on collecting $2,480 she claimed he should pay her. So from any viewpoint this indictment cannot be sustained.

There are some other questions in the case that possibly it might be well enough to notice in a general way. Application for continuance ■ was overruled. Inasmuch as that question cannot arise upon another trial as here presented, its discussion is pretermitted.

There are quite a number of bills of exception set out in the record wMeh are not intended to be treated specifically, but in a general way. Mrs. Lawrence Redmond, wife of the defendant, was the principal state’s witness, and testified to such things as the state deemed of importance, and, among other things, she was permitted to state, over objection of appellant, that she “knocked at the door” of the residence of defendant’s parents on January 21, 1915. A Mexican came to the door. She was permitted to answer this question: “What did the Mexican say to you?” Appellant was not present and knew nothing about it, and various objections were based upon this matter. In reply to the question she testified that when she knocked at the door of the residence of appellant’s parents a Mexican came to the door and told her that defendant’s father said she •could not see him, the defendant. This testi,mony was clearly not admissible. It occurred between this witness ánd the Mexican. The Mexican’s statement that appellant’s father said she could not see the defendant was a matter occurring between third parties, and was inadmissible unless defendant was connected with it. The court was then asked to instruct the jury to disregard and ignore the testimony, which was refused. This the court should have done. The whole matter was erroneous.

There are several questions arising out of the visit of the prosecuting witness to the residence of appellant’s father, which are unnecessary to discuss, inasmuch as that matter and visit and connected circumstances are not admissible. The other questions will not .arise again for that reason.

There is another question asked of the witness on cross-examination: “Do you love him [meaning the defendant]?” It was expected to be shown by this testimony that she did not. This was offered as a circumstance to show that the prosecuting witness actually deserted defendant, instead of defendant deserting her. We think this, taken in connection with some of the other matters in the bills of exception, should have gone to the jury. It is shown elsewhere she presented to defendant in February, some ten days or more before the filing of the indictment, a bill for over $2,400, setting out various items which she thought defendant ought to pay her. One was for $600 that she said her trousseau cost, and various other matters; $60 expenses to Corpus Christi; $60 for her return trip; and $1,200 “expenses one year pending time for divorce to be entered, with expenses, attorney’s fees, costs,” etc. The next bill shows that the defendant asked her on cross-examination: “If this bill had been paid, would you have taken this matter before the grand jury?” They expected for her to state in reply that, if prosecuting witness had received the money called for by the bill, in the aggregate sum of $2,480, she would never have'instituted criminal prosecution against the defendant. We think these matters ought to have gone before the jury, as they were germane to the question of desertion, especially in the light of the testimony of the prosecuting witness as drawn out by the state. It also tended strongly to show her return to Corpus Christi was for money, rather than a renewal of her marital relations with defendant.

Another bill was to the effect that appellant wanted to prove on cross-examination, she having testified that desertion occurred in Maryland, and not in Nueces county, why she did not institute the proceedings against him in Maryland. She was not permitted to answer this question. These things are all so connected up that it occurs to us that matter ought to have been investigated, inasmuch as the state put these matters before the jury. The defendant had the right to break the force of 'them as best he could by any legitimate evidence.

Another bill shows the prosecuting witness went to Rev. Dr. Renfro, a Methodist minister, at Corpus Christi, and talked with him about her troubles with her husband. She was asked on direct examination by the county attorney what did Dr. Renfro advise her to do about it. Various objections were urged that it was irrelevant, immaterial, and incompetent, and would be an expression of the opinion of Dr. Renfro on tMs controversy, and same was hearsay, and defendant was not shown to have been present at the time. All of said objections were by the court overruled, and the witness testified by stating Dr. Renfro, the Methodist minister, advised her to see an attorney about the matter, and she thereupon went to Mr. Todd. All of this was error. Objections should have been sustained. These were matters occurring between Dr. Renfro and prosecutrix about which appellant had no knowledge and was not a party to it. It was a matter occurring between third parties.

While the prosecuting witness, Olive Redmond, was testifying for the state, she stated, in substance, that on account of mistreatment of her by Mrs. Henry Redmond, mother of defendant, while she (prosecuting witness) was living at the residence of defendant’s parents, she (prosecutrix) left Corpus Christi and went to Philadelphia, and thereafter, while Mrs. Henry Redmond was testifying for the defendant, she was ashed on direct examination this question:

“Did you do anything to cause prosecuting witness to leave the house where she was then living with her husband together with you and Dr. Redmond, his father?”

Objection was urged to this by the state, and she was not permitted to answer the question, but she would have answered, had she been permitted, that she had not mistreated the prosecuting witness while she was living with the defendant at his parents’ house, and the prosecuting witness had no. reason for leaving the house of defendant’s parents, where she and her husband were then staying, and without cause left said place in Corpus Christi, and went to Philadelphia of her own accord. Several bills of this nature, including three with reference to letters which were written by prosecuting witness, one to Mrs. Henry Redmond, and two to her daughter, Catherine Redmond, all in affectionate and endearing terms were rejected. These letters, as shown, were written to them after Mrs. Henry Redmond and her daughter, Catherine Redmond, had visited the prosecutrix in Philadelphia. -While there they were on amicable relations, and they had prosecuting witness out to lunch with them, and showed her different sorts of courtesies and attentions. These letters were written to them after they left Philadelphia and went to New York. They are rather lengthy and unnecessary to be repeated. They discard all idea of any bad treatment on the part of either Mrs. Henry Redmond or Catherine Redmond. These become important because prosecuting witness had testified that she left Redmonds on account of mistreatment by Mrs. Henry Redmond and Catherine Redmond. The judge seems to have had the idea that, because these letters and this testimony of Mrs. Henry Redmond was cumulative of other facts, therefore it was inadmissible. The reason given for its objection was one of the strongest reasons why it should have, been admitted. The state had put into this record a great deal of testimony from the prosecuting witness to the effect that she left the Redmond home in Corpus Christi and went to Philadelphia because the family, Mrs. Henry Redmond and Catherine Redmond especially, were making life uncomfortable. This went before the jury. Certainly the defense had a right to meet this testimony. It seems it ought to be regarded as fundamental, independent of the statute, that where an adverse fact is put in evidence against a party, that party can meet such adverse fact with such testimony as is legitimate, and which tends to destroy its weight and force. That is one of the first principles of right and justice, and it is expressly so provided by our statute. It is unnecessary to notice further these bills of exception with reference to this treatment of Mrs. Henry Redmond and Catherine Redmond as testified by prosecutrix, and the rejection of the testimony of Mrs. Redmond offered to rebut it.

There are some bills of exception with reference to the argument of counsel, which will not occur upon another trial. There are quite a number of exceptions to the charges, special charges requested and refused. These will not be discussed in view of what has been heretofore said.

There is another question that may be well enough to notice. The “rule” was invoked, and all witnesses were asked to be placed under the “rule.” The court excused prosecuting witness from the rule, and permitted her to remain in the courtroom by the side of her attorneys during the entire trial. She was the state’s main witness, and from the bill of exception it appears the rule was invoked as much or more as to her than any other witness in the case. Be that as it may, she was the important witness for the state. A great deal has been written and said’ about the discretion of a judge in enforcing the “rule.” In some cases this court has held the trial court did not abuse the discretion to the extent of the requiring a reversal, but we think this case has passed the limit and boundary line. The court certainly abused this discretion in permitting this witness to remain in the courtroom. She was permitted to remain and hear all the testimony. It was upon her testimony that the state rested the prosecution. She was not an officer of the court, nor necessary to be present in the execution of the duties devolving upon peace officers in and around the court. She was not an attorney in the case. She was the prosecuting witness, and seems to have been rather critical in her prosecution. She had the advantage of hearing all the testimony, while witnesses for the defense did not. The rule must not be invoked, or ought not to be, and made to operate an injustice. It certainly ought to come within the well-defined limits that requires each case to be kept within the boundaries of fair trial and justice. The discretion of the court was not properly exercised.

There are quite a lot of kindred questions besides those we have mentioned, but they are of the same nature. Without going further into detail, we think enough has been said to indicate that, if this case should ever be tried again, it must come within the rules already announced. The defendant is entitled to a fair trial, and the right to meet all opposing testimony by any legitimate explanation that is within his power, if conviction must be had after fair trial.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., and HARPER, J.

We concur in the reversal of the case, but we do not agree that a conviction could not be bad under tbe indictment, as it charged a failure and refusal to provide for bis wife, and we think sbe was only gone on a visit to Philadelphia, and her home was continuously in Corpus Christi from the time axjpellant and his wife moved to that place. If, however, the testimony raises the issue that prosecutrix, at the time she went to Philadelphia, intended to abandon appellant, that issue should be presented in the charge.

We do not think the court erred in not excluding the prosecuting witness from the courtroom. Defendant was in the courtroom, and we think the court would not abuse his discretion in permitting her to remain in the courtroom after she bad testified on direct examination, if the state’s counsel requested that she be permitted to remain to assist him.

On Motion for Rehearing.

PRENDERGAST, P. J., and HARPER, J.

Appellant has filed a motion for rehearing, in which he earnestly insists that we were in error in holding that Nueces county had jurisdiction to try this cause. The statute under which the conviction was had places the venue of the offense where the abandonment occurred, or where the wife shall have resided the six months immediately preceding the filing of the indictment. Appellant and Mrs. Olive Redmond were married in Panama August, 1, 1914, and arrived in Corpus Christi about August 12, 1914, and made their home with the father of appellant in Corpus Christi. They lived together as husband and wife in Corpus Christi for about one month at the home of appellant’s father, when Mrs. Olive Redmond says she went to Philadelphia, where she had a brother, on a visit. Mrs. Redmond testified that, when she and appellant were married, appellant told her he had told his parents. However, she says, when they arrived in Corpus Christi, his father, mother, and sister denied any knowledge of that fact, and his father seemed to be very bitter, and said to Mrs. Redmond at the house where they were residing that she had just as well drive a dagger through bis heart as to have taken his boy awaj from him; that defendant’s mother doubted the marriage, and asked to see the marriage license, and showed she was very much hurt over the marriage; that, on account of the conduct of appellant’s father, mother, and sister, things were unbearable. Without going into details of the acts she complains of, she testifies that, on account of their mistreatment of her, it was finally agreed to her going North and visiting her people. There is nothing in the testimony, as we read it, suggesting a permanent separation at that time, or that she was abandoning appellant. About the middle of September she left Corpus Christi, appellant supplying her with a ticket and money to make the trip. She says that, when she left on this visit, “it was understood between my husband and myself that I would return as soon as conditions got better, and that, if things did not get better, we would get a house to ourselves”; that she stayed in Philadelphia with her brother until December 9th, and while there, was engaged in social service work. She says she wrote to her husband nearly every day for about three weeks, but during the entire time she was away appellant did not write to her but once. Appellant did not testify. This evidence and other facts and circumstances in the case would raise the issue that appellant at the time he furnished her the ticket and money to go to Philadelphia on a visit intended to abandon her; and, if so, this certainly would give Nueces county jurisdiction. I-Iowever, sbe says in December she learned appellant was in Baltimore, and on December 9th she went to see him, and they lived as husband and wife while in Baltimore. This is positive evidence that she intended no abandonment when she left Corpus Christi, and there is nothing in the record that can be so construed, as we read the record. When they went to leave Baltimore, they went to the depot together to go to Philadelphia. She says:

“We understood that the train would leave Baltimore about 10 o’clock at night, so about 10 o’clock we went to the station, and found out the train would not leave until about 2 o’clock in the morning. At that time I was sick and unwell, and my husband knew my condition. I asked him to return to our room and spend the time, which he refused to do, and stated that we would remain at the station. I told him that 1 did not believe that I was able to stand it, so we went into the station, and I began crying, which seemed to anger him. Finally he took me into the ladies’ waiting room, where it was more comfortable, and he walked out on the outside of the depot for the purpose of getting some fresh air. About 10:30 he returned to the waiting room and asked me if there was anything that he could do for me, and I told him ‘No.’ I never saw him any more after that until I returned to Corpus Christi. I looked for him around the station and could not find him. I stayed at the depot by myself until 2 o’clock, and then took the train to Philadelphia. I afterwards learned that he went to New York, and I talked to him over the phone. He asked me to write to him, and he promised to write to me.”

Sbe says sbe came to Texas in January, and, when she got to San Antonio, she called her husband over the telephone and asked him to come to San Antonio and meet her, but. he said he was unable to come after her, and for her to come on to Corpus Christi; that when she got to Corpus Christi she found her husband was not at the depot to meet her, and she went to the phone and called him, and he told her to wait, that he would come down immediately; that she waited for him more than an hour, when she phoned again, but could get no answer, that she went to the home of appellant’s father, Dr. Henry Redmond, where her husband was staying, but she was unable to get any one to answer her summons; that she wrote appellant, but could get no answer; that she did get him over the telephone, and he would promise to come to the Nueces Hotel, where she was staying, immediately, hut he never came; that she hegged for an interview, but could .never secure one; that appellant refused to pay her hotel bill, and refused to pay for her room and board while she stayed with Mrs. Woodbridge in Corpus Christi. This testimony certainly, to our minds, places the venue of the case in Nueces county, and does not suggest that Mrs. Redmond had or had intended to acquire a residence at any other place than Corpus Christi after she and her husband went there and made it their home in August, 1914; while, on the other hand, the evidence suggests that appellant intended an abandonment when his wife went on a visit to Philadelphia, and, if so, this abandonment took place in Nueces county. There is no more evidence of abandonment taking place in Baltimore, Md., than there is of the abandonment occurring when Mrs. Redmond left to go to Philadelphia on a visit. The unequivocal act of abandonment took place after her return to Corpus Christi. This is the time she was made aware that, in so far as appellant was concerned, he would contribute nothing to her support, and would live with her no longer. But, regardless of when and where the abandonment occurred, the evidence shows that Mrs. Redmond’s residence was in Nueces county from and after August, 1914, and the venue of the case was properly laid in 'that county.

The motion for rehearing is therefore overruled.

DAVIDSON, J. I adhere to what I wrote in original opinion. 
      @=Eor other oases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <S=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     