Thacker v. State

• Decision Date: 12 April 1911
• Citation: 136 S.W. 1095
• Parties: THACKER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1095

136 S.W. 1095

THACKER v. STATE.

Court of Criminal Appeals of Texas.

April 12, 1911.

Rehearing Denied May 10, 1911.

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.

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 McLester, 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...