
    THACKER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 12, 1911.
    Rehearing Denied May 10, 1911.)
    1. Husband and Wife (§ 303) — Abandonment — Statutory Provisions.
    Acts 31st Leg. c. 50, § 1, in force March 17, 1909, provides that if any person by promise of marriage shall seduce an unmarried female under 25, and if, after prosecution is begun, the parties marry before the defendant pleads to the indictment, and the defendant, within 2 years after said marriage, without his wife’s fault, such as would entitle him to a divorce, shall abandon her, he shall be guilty of a penitentiary offense. A seduction took place in 1907, but the parties married in July, 1909, and the husband abandoned his wife shortly thereafter. Held that, the marriage and abandonment having taken place after the law took effect, it was immaterial that the seduction was prior thereto.
    [Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. § 1101; Dee. Dig. § 303.]
    2. Constitutional Law (§ 208) — Glass Legislation.
    Nor is such act a violation of Bill of Rights, § 3, requiring that all men shall have equal rights and privileges.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 649-677; Dec. Dig. § 208.]
    3. Criminal Law (§ 1213) — “Cruel and Unusual Punishment.”
    Nor does the act impose a “cruel or unusual punishment” within Const, art. 1, § 13.
    [Ed. Note. — For other, cases, see Criminal Law, Cent. Dig. §§ 3304-3309; Dec. Dig. § 1213.
    
    For other definitions, see Words and Phrases, vol. 2, pp. 1765-1767; vol. 8, p. 7624.]
    4. Criminal Law (§ 162) — Foemer Jeopardy —“Twice in Jeopardy fob the Same Offense.”
    Nor does the act provide for putting one twice in jeopardy for the same offense within Const, art. 1, § 14.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 285; Dec. Dig. § 162.
    
    For other definitions, see AVords and Phrases, vol. 4, pp. 3S02-3811; vol. 8, p. 7694.]
    5. Constitutional Law (§ 197) — “Ex Post Facto Law.”
    Nor is the law an “ex post facto law” within Const, art. 1, § 16.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 550; Dee. Dig. § 197.
    
    For other definitions, see Words and Phrases, vol. 3, pp. 2527-2533; vol. 8, p. 7657.]
    6. Seduction (§ 40) — Criminal Responsibility-Evidence.
    In prosecutions for seduction, the prosecuting witness may state that more than one act of intercourse took place between herself and the defendant. *
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 79; Dec. Dig. § 40.]
    7. Husband and Wife (§ 313) — Marriage to Prevent Prosecution for Seduction— Abandonment — Evidence — Corroboration of Prosecutrix.
    In a prosecution of a husband for abandonment of his wife, whom he married to prevent prosecution for seduction under marriage promise, the prosecuting witness must be corroborated both as to the promise of marriage and as to the illicit intercourse.
    TEd. Note. — For other cases, see Husband and Wife, Gent. Dig. § 1110; Dee. Dig. § 313.]
    8. Husband and Wife (§ 304) — Marriage to Prevent Prosecution for Seduction — Abandonment.
    In a prosecution of a husband for abandoning his wife, whom he had married to prevent prosecution for seduction under promise of marriage, defendant cannot be convicted if the female consented to the illicit intercourse not relying solely on a prior unconditional promise of marriage, but on a promise to marry her in case she should become pregnant, or on any other reason or inducement.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1102; Dec. Dig. § 304.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Charlie Thacker was convicted of abandonment after seduction and marriage, and he appeals.
    Affirmed.
    Scott & Brelsford, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otter eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

In this case the defendant was charged with the offense of abandonment after seduction and marriage. Upon a trial he was convicted and sentenced to three years’ confinement in the state penitentiary.

The indictment in this case charges that defendant on or about the 1st day of September, 1907, unlawfully seduced Winnie Mc-Lester, and was indicted for that offense by the grand jury of Eastland county; that, after indictment found and before announcement of ready for trial, defendant legally married said Winnie McLester, and thereafter abandoned his said wife without fault on her part. The indictment in this case was returned under chapter 50 of the Acts of the Thirty-First Legislature, which reads as follows : “Section 1. If any person, by promise of marriage, shall seduce an unmarried female under the age of twenty-five years, and shall have carnal knowledge of such female, and if after prosecution has begun, the parties marry each other, at any time before the defendant pleads to the indictment before a court of competent jurisdiction, and if the defendant within two years after said marriage, without the fault of his said wife, such fault amounting to acts committed by her after said marriage as would entitle him to a divorce, under the laws of this state, shall abandon her or refuse to live with her, or shall be so cruel to her as to compel her to leave him, or shall be guilty of such outrages or cruelties towards her as to make their living together insupportable, thereby leaving her or forcing her to leave him and live apart' from each other, shall be guilty of the offense of abandonment after seduction and marriage, and any person convicted of said offense shall be confined in the penitentiary for a term not less than two nor more than ten years, and said marriage shall be no bar to the qualifications of said female to testify against the defendant and the female so seduced and subsequently married and abandoned as herein provided shall be a competent witness against said defendant.” This act became a law March 17, 1909. The act of seduction is alleged to have occurred in 1907, prior to the enactment of this law; but the marriage and abandonment was Subsequent to the time the law became effective; the marriage being solemnized on July 16, 1909, and the abandonment taking place shortly thereafter, for which offense he was indicted by the grand jury at the January term of court in 1910.

Appellant filed a motion to quash the indictment because the offense of seduction took place prior to the enactment of the law. It is immaterial when the seduction took place; it is the abandonment without sufficient cause that is denounced as an offense, and this took place, subsequent to the enactment of the law. If the marriage and abandonment both took place after the law became effective, then the offense would be punishable under the law.

Defendant also alleged that the law is void, in that it is repugnant to section 3 of the Bill of Rights, and to sections 13, 14, and 16 of article 1 of the state Constitution. We do not think this law is violative of either of said sections or any other provision of our Constitution. The Legislature has the right to make it an offense to abandon the wife, when no grounds exist which would authorize a divorce, and the fact that they apply this law to only those persons who have seduced a virtuous female, and then married her to escape the penalty of their crime, does not render the law violative of the provisions of our Constitution. The law applies to all men who seduce women, marry them, and then abandon the poor unfortunate. It is not placing a man in jeopardy twice for the same offense; it is a new offense for which he is being prosecuted — abandonment of his wife without cause. In volume 21 of that excellent work, Cyclopedia of Law and Procedure, p. 1611, we find the following text: ‘‘At common law the husband’s neglect to support the wife in connection with his abandonment or desertion of her is not an indictable offense; but in many states by force of statutes the husband may, for such breach of the marital duty, be prosecuted under criminal or quasi criminal proceedings” — citing many authorities. In Indiana the statute subjects to a penalty any male person, who, having become civilly or criminally liable for bastardy or seduction,' marries the wronged female with intent to escape prosecution, and afterward maltreats, deserts, or fails to provide for her. State v. Lannoy, 30 Ind. App. 335, 65 N. E. 1052. See, also, People v. Crouse, 86 App. Div. 352, 83 N. Y. Supp. 812; Carney v. State, 84 Ala. 7, 4 South. 285; Poole v. People, 24 Colo. 510, 52 Pac. 1025, 65 Am. St. Rep. 245; State v. Schweitzer, 57 Conn. 532, 18 Atl. 787, 6 L. R. A. 125; State v. McCullough, 1 Pennewill (Del.) 274, 40 Atl. 237; Stanley v. People, 104 Ill. App. 294; State v. Baker, 112 La. 801, 36 South. 703; State v. McLorinan, 43 N. J. Law, 410; State v. May, 132 N. C. 1020, 43 S. E. 81; Commonwealth v. Baldwin, 149 Pa. 305, 24 Atl. 283; State v. Sutcliffe, 18 R. I. 53, 25 Atl. 654; State v. Witham, 70 Wis. 473, 35 N. W. 934. In case of State v. Davis, 70 Mo. 467, the court upholds and enforces a statute reading as follows: “Every husband shall be deemed guilty of a misdemeanor who shall without good cause abandon his wife and fail and neglect or refuse to maintain and provide for her or who shall without good cause abandon his child or children under the age of twelve years.”

The court did not err in overruling the motion to quash the indictment. It is not violative of any provision of our Constitution and is, in our opinion, a wise exercise of legislative discretion. The bills of exception which complain of the testimony of the prosecuting witness present no error. It is not improper in cases of seduction to permit the witness to state that they had more than one act of intercourse.

Bill No. 5 presents no error as qualified by the court and which was accepted and filed by defendant.

We have carefully read the charge of the court, and, taken in connection with the three special charges of the defendant, we think it fairly presented the law of this case. At the request of defendant, the court gave three special charges. The third special charge is as follows : “The jury are instructed that the prosecuting witness must be corroborated, both as to the fact of the promise of marriage, and also as to the fact of illicit sexual intercourse between the defendant and the prosecuting witness, if you believe beyond a reasonable doubt that there was such promise of marriage and sexual intercourse, before you can find the defendant guilty.”

Special charge No. 4 is as follows: “You are instructed that, should you believe from the evidence in this case that the defendant had sexual intercourse with the prosecuting witness, arid if you further find that without being based upon and induced by an unconditional promise of marriage such, intercourse was consented to by and upon the part of the prosecuting witness, Winnie McLester, by reason of the fact that at the time of such intercourse the defendant promised her that he would use a rubber protector to prevent her of being caught or becoming pregnant, or that if she was caught or became pregnant that he would marry her as soon as she would notify him that she had been caught or become pregnant, then it is your duty to acquit the defendant and so say by your verdict.”

Special charge No. 5 is as follows: “You are charged that, should you believe from the evidence beyond a reasonable doubt .that defendant had sexual Intercourse with said Winnie McLester, before you can find the defendant guilty you must believe beyond a reasonable doubt that, at the time of such intercourse, the sole and only reason or inducement that moved the prosecuting witness to participate in such intercourse was the prior promise of marriage, if any was made, and that no other reason or inducement caused her to yield to such intercourse.”

The complaint that the court erred in failing to give special charge No. 7 is without merit. Such an agreement would have been against the policy of the law enacted by the Legislature, and the parties could not agree that, if defendant did acts which rendered him guilty of a violation of the law, he should not be punished.

The judgment is affirmed.

DAVIDSON, P. J., dissenting.  