Arch Lee Watson v. State , 131 Tex. Crim. 44 ( 1936 )

The offense is wife desertion; the punishment, confinement in the penitentiary for two years.

Appellant married Mary May Marshall on the 17th of March, 1935. He had theretofore had sexual relations with her and she was pregnant at the time of the marriage. Immediately after the marriage appellant left his wife and failed to contribute anything to her support. According to the testimony of the State, he was earning approximately thirty dollars a week and was able to support her. She was in necessitous circumstances, was unable to work and her parents were not financially able to support her.

Appellant testified that he married his wife because some of her relatives had stated to him that if he did not marry her they would take action. He testified also that he learned after the marriage that her general reputation for virtue and chastity was bad. However, he admitted that at the time he married her he had no intention of living with her. Also, he admitted that he had earned from thirty to sixty dollars a month and that he had not contributed anything toward her support.

We deem the evidence sufficient to support the conviction.

Appellant sought to have the jury instructed to acquit him if they entertained a reasonable doubt as to whether he learned after the marriage that the general reputation of his wife for virtue and chastity was bad. He cites no case supporting his contention that mere bad general reputation for virtue and chastity of the wife justifies the husband in deserting her. Under the facts reflected by the record we deem it unnecessary to decide whether the requested instruction embodied a correct legal proposition. It is reflected by the statement of facts that appellant had already abandoned his wife when he claimed he heard that her reputation was bad. Referring to the reports he had heard, he said: "I never heard anything of that until I had left her. I had already carried her out to Walter Kelly's when I heard those reports. I went back to see her about the second of April to have a final understanding with her. * * * That final understanding was that I did not love her. I told her that the day before. I told her that again, to repeat." Again, appellant testified: "It is all so that I married this girl to escape prosecution with no good intention to live with her and carry it out." We think the requested charge was properly refused.

In his argument to the jury the district attorney said: "This defendant took this poor little innocent girl out on the Magnolia Springs road at night and assaulted her." The bill recites that the argument was objected to because there was nothing in the record to indicate that an assault was committed. We find nothing in said bill to support the ground of objection. We quote from 4 Tex. Jur., 391: "Nor is it sufficient to merely state the grounds of objection to the argument; the bill must demonstrate that the facts which form the basis of the objection are true." In support of the text many authorities are cited, among them being Woolston v. State,13 S.W.2d 864. We are constrained to hold that the bill is insufficient to reflect error.

The sentence pronounced against appellant directs that he be confined in the peniteniary for two years. The statute provides a maximum penalty of two years' confinement in the penitentiary, but fixes no minimum penalty. The sentence is reformed in order that it may be shown that appellant shall be confined in the penitentiary for not less than one hour nor more than two years. See Davis v. State, 68 S.W.2d 217.

As reformed, the judgment is affirmed.

Sentence reformed, and, as reformed, affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.