
    HUNTLEY v. STATE.
    (No. 8408.)
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1924.
    Rehearing Denied Dec. 17, 1924.)
    1. Husband and wife <&wkey;305 — Wife’s unchastity and bad reputation previous to marriage no defense in prosecution for wife desertion.
    Wife’s unchastity and bad reputation previous to marriage, which was known by husband, is not a defense in prosecution for wife desertion.
    2. Marriage <&wkey;35 — Evidence held not to show duress vitiating marriage.
    Evidence that accused voluntarily accepted proposal to dismiss rape prosecution on condition that he marry prosecutrix held not to show duress, vitiating marriage.
    On Motion for Rehearing.
    3. Husband and wife &wkey;>302 — Abandonment must be willful and without justification.
    To constitute an offense, abandonment of wife must be willful and without justification.
    4. Husband and wife <&wkey;313 — Evidence held to show husband discovered wife’s unchastity before marriage.
    Evidence held insufficient to show that husband first knew of wife’s unchastity after marriage, and before declining to support her, so as to sustain defense that he was justified in refusing to support her.
    5. Husband and wife <&wkey;305 — No defense that wife was living with mother.
    It is no defense in prosecution for wife desertion that wife was living with her mother, who was earning $10 per week besides collecting some rent.
    Appeal from Tarrant County Court, at Law; P. W. Seward, Judge.
    Hubert Huntley was convicted of wife desertion, and appeals.
    Affirmed.
    Clarence E. McGaw, of Eort Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Wife desertion is the offense; punishment fixed at confinement in the county jail for a period of 60 days, and a fine of $25.

According to the prosecutrix, before her marriage, the appellant enticed her into his house upon the statement that he was giving a social. She expected other company, but upon entering the house, she found herself alone with the appellant. He there overpowered her and had intercourse with her. He then told her that if she would marry him, he would treat her right. She became pregnant, and insisted that the appellant marry her. He told her that she could mate him marry her, but that she could not make him stay with her.

According to his testimony, appellant had 'previously had • sexual relations with the prosecutrix, and she had voluntarily come to his room on the occasion to which her testimony related. Appellant was subsequently arrested upon a charge of rape, and the officers in charge told him that if he would marry the girl, his case would be dismissed. Upon this assurance he married her. He was released from custody, but immediately abandoned her. According to the testimony, the prosecutrix was pregnant, unable to work, and was living on the bounty of her grandmother. Appellant introduced testimony attacking her previous reputation for chastity. He also introduced testimony of her specific illicit sexual relations with other persons antecedent to the marriage.

Appellant made an application for a continuance to secure the testimony of witnesses who were in California and Arkansas, who would .have' testified that they had had in-’ tercourse with the prosecutrix before her marriage to the appellant. The application is lacking in showing diligence. The' testimony of the witnesses, according to the motion, would have gone to show that the prose-cutrix, prior to the marriage, had had intercourse with them, and that her reputation for chastity was then bad. According to the appellant’s theory and testimony, he was aware, before the marriage, that the reputation of the prosecutrix for virtue and chastity was bad, and that she had indulged in illicit sexual relations with other men.

Appellant requested, and the court refused, a special charge, the purport of which was to inform the jury that if there was no-promise of marriage subsequent to the first act of intercourse with the appellant, the woman was not chaste, and that her want of chastity would impeach her and mitigate the penalty. Another requested charge, which was refused, embraced the proposition that if the prosecutrix bore the reputation of an unchaste woman before the marriage, the appellant was entitled to an acquittal. Apparently the learned counsel has confused the law of rape and- seduction with that pertaining to the offense with which his client . is charged. If, at the time of the marriage the prosecutrix was unchaste, and her general reputation for chastity was bad, were within the knowledge of the appellant, her previous unchastity or her bad reputation would furnish no legal reason for her desertion by the appellant.

The appellant’s contention that the evidence shows that his marriage was vitiated by reason of duress is not deemed tenable. He was under a charge of rape, based upon the testimony of the prosecutrix, sufficient to warrant the complaint. If the testimony of the prosecutrix was true, he was under moral obligation to marry her. The proposal of the officers to release him and to dismiss the prosecution for rape if he would marry the prosecutrix was submitted to and accepted by him without, so far as we are able to ascertain from the statement of facts, the presence of any element calculated to prevent him from exercising his free will. He had the option of resisting the prosecution, or ofl avoiding it by the marriage. He accepted the latter alternative, apparently of his own volition. 1-Iis confinement at the time of the marriage does not appear to have been illegal, either in form or substance. For the elements of duress, see Oyc. of Law & Proc., vol. 14, p. 1123.

Finding no error in the judgment, its af-firmance is ordered.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists, in an earnest and able motion for rehearing, that the evidence does not support the conviction. 1-Ie insists that in order to be a violation of the law the abandonment of the wife must be willful and without justification. This is correct. Appellant insists that, .inasmuch as he was compelled to marry his wife in order to escape a prosecution for rape, and that he discovered after his marriage that she had been previously unchaste, that he was, therefore, justified in declining to support her. We have very carefully examined his testimony, but do not find in it any assertion of the fact that he discovered her criminal connection with other men after such marriage and before he declined to contribute to his wife’s support. It is very plain from his testimony that he claims to have had carnal knowledge of her a number of times before they married. He also admits that he never contributed a penny to her support after their marriage, notwithstanding the fact that she was pregnant at the time. While he was not making a large salary, he was getting all he could eat and $6 a week from the man for whom he worked, and could have divided this money with his wife had he so desired.

Appellant stresses the proposition that his wife was living with her mother who ,was earning $10 a week, and getting some rent from a little house belonging to her. We have held that the needy and necessitous circumstances of the wife cannot he determined by the ability of her relatives to take care of her. If she herself has no money and no means of support and is not able to work, the fact that she had parents or relatives who could support her if they so desired. would not be taken by us to be a sufficient fact to rebut the proof of a needy and necessitous condition.

Regretting that we cannot agree with appellant’s contention, the motion for rehearing will be overruled.  