Decker v. Decker, 193 Ill. 285, 61 N. E. 1108, other commodities provided by the defend55 L. R. A. 697, 86 Am. St. Rep. 325, and note; Christianberry v. Christianberry, 3 Blackf. (Ind.) 202, 25 Am. Dec. 96; Burke v. Burke, 44 Kan. 307, 24 Pac. 466, 21 Am. St. Rep. 283; Day v. Day, 71 Kan. 385, 80 Pac. 974, 6 Ann. Cas. 189, and note; Cumming v. Cumming, 135 Mass. 386, 46 Am. Rep. 476; Morrison v. Morrison, 142 Mass. 361, 8 N. E. 59, 56 Am. Rep. 688; Von Bernuth v. Von Bernuth, 76 N. J. Eq. 487, 74 Atl. 700, 139 Am. St. Rep. 784; Smith v. Smith, 4 Paige (N. Y.) 432, 27 Am. Dec. 75; Mattox v. Mattox, 2 Ohio, 233, 15 Am. Dec. 547; Church v. Church, 16 R. I. 667, 19 Atl. 244, 7 L. R. A. 385; Mathewson v. Mathewson, 18 R. I. 456, 28 Atl. 801, 49 Am. St. Rep. 782; Hale v. Hale, 47 Tex. 336, 28 Am. Rep. 294; Hubbard v. Hubbard, 74 Wis. 650, 43 N. W. 655, 6 L. R. A. 58; Nye's Appeal, 126 Pa. 341, 17 Atl. 618, 12 Am. St. Rep. 873; Ellett v. Ellett, 157 N. C. 161, 72 S. E. 861, 39 L. R. A. (N. S.) 1135, Ann. Cas. 1913B, 1215; Anderson v. Anderson, 89 Neb. 570, 131 N. W. 907, Ann. Cas. 1912C, 24. To the same effect is 14 Cyc. 630, 631. In the case of Decker v. Decker, supra, reported in 193 Ill. 285, 61 N. E. 1108, 55 L. R. A. 697, 86 Am. St. Rep. 325, Mr. Freeman has an extended note upon the doctrine of recrimination now under consideration, and on page 336 of that volume he says: "It is a rule of universal application that, in reply to an application for divorce on the ground of adultery of the defendant, he may allege, either by way of recrimination or crosspetition, the commission of adultery by the plaintiff; and, if the charge is sustained as to both of the parties, the suit must be dismissed, provided, of course, there has been no condonement. If both parties have a right to a divorce, neither has" -and to this statement there is appended a long list of cases from many of the states. Our own court has in an indirect way recognized the doctrine in Evans v. Evans, supra, and Beeler v. Beeler, supra. This principle we regard as eminently just, for if the spouse who is seeking a release from the bonds of matrimony is himself guilty of the same charge which he makes, or of another equally efficacious in dissolving such bonds, he should not be permitted to alter his status, and to be relieved of the burdens thereof, and to thereby deprive the other spouse of whatever benefits that may accrue, either in a social way, or from or growing out of property rights, inchoate or otherwise, by a continuance of the relation. [7, 8] Briefly examining now the charges which the defendant preferred against the plaintiff, the testimony shows that from an early date the plaintiff's treatment of the defendant was cruel, rough, and wholly inconsiderate. She worked like a slave, and the meager clothing which she and the children received, aside from their every-day wear, was purchased principally with money earned from the sale of butter, eggs, and ant. On a number of occasions the plaintiff inflicted physical injuries upon the body of defendant, by striking her at least once with a stick and sometimes with his fist, and upon one occasion he pulled out part of her hair. The children were the frequent recipients of their father's wrath, and when the mother protested she shared their punishment. This continued, according to the testimony of the defendant and three of the children—and denied by no one, since plaintiff did not go upon the stand-until the wife moved with her children to Danville. Plaintiff grew very cold after that time, and upon one occasion before the alleged affair with J. H. Smith, when he was at the Danville home, because some young school children were making a noise in a neighboring yard, he accused his daughters and wife of running a "whorehouse," and subsequently wrote letters to his daughters, in which the same charge was stated. It is true that the letters were after the alleged affair with J. H. Smith, but according to the authorities, supra, if they were unfounded and malicious, they at least furnished evidence of cruelty as much so as if made prior to that time, and that such unfounded charges are competent on a charge of cruelty has been many times announced by this and other courts. Kefauver v. Kefauver, 57 S. W. 467, 22 Ky. Law Rep. 386; Bishop on Marriage, Divorce and Separation, vol. 1, § 1569; Cyc. vol. 14, p. 606; Rogers v. Rogers, 17 S. W. 573, 13 Ky. Law Rep. 526; Barlow v. Barlow, 90 S. W. 216, 28 Ky. Law Rep. 664; and 9 R. C. L. 345, 346. From this testimony, which, as we have said, is undenied, there is no escape from the conclusion that the charge in the counterclaim of cruel and inhuman treatment was established. About the middle of 1915 Eula Sergent, alias Howard, came to live in plaintiff's house in Harlan county, in which there also lived a man and his wife with two or three children. The Sergent or Howard woman was a divorced widow, about 23 years of age, and Noble Smith, while on a visit to his father that summer testified that he saw plaintiff in bed with that woman. Another witness testified that in passing plaintiff's house he saw through the window plaintiff and the woman caressing each other in plaintiff's room, and as he thought plaintiff had the woman sitting on his lap. Other witnesses testified that they were seen frequently together about the neighborhood, sometimes riding horseback and at other times walking. After the woman left plaintiff's house he was seen frequently about the places to which she moved, engaged in conversation with her, and within one week from the granting of the divorce (a fact which we learn from the motion to modify the judgment) she and the plaintiff were married. It does not require a keen imagination to sur mise that the hiring of the nephew, J. H. Smith, was in preparation for this event, so that plaintiff might be relieved of the burden and responsibility of caring for and looking after the children, and at the same time to exchange his tired and exhausted wife for a younger and more attractive woman. [9-11] The reputation of Miss Sergent, or Howard, for chastity is assailed by the testimony of a number of witnesses. None of these facts is denied by the plaintiff, as he did not testify; but the woman denies all of them, and says that the subject of marriage was never mentioned between them, although, as we have seen, it occurred within a week after the granting of the divorce. She admits, however, that upon one occasion the plaintiff attempted to hug and kiss her, but that she declined to let him do so. There are other facts and circumstances connected with the relationship of the plaintiff and the woman in question sufficient to at least raise a strong suspicion that defendant's charge against him of living in adultery with her was true. Under the doctrine of recrimination, which we have heretofore discussed, if for no other reason, it is manifest that the court should not have granted the divorce to the plaintiff, and if he thought that the charges preferred against the defendant were true he should have at most granted only a divorce a mensa et thoro, for it must also be remembered that if the twig was bent the plaintiff was the first one to bend it. In such case it would have been the duty of the court to make proper alimony allowances to the wife. Burns v. Burns, supra, and cases therein referred to. Although we have no right to reverse the judgment of divorce, we are not prevented from correcting the judgment with respect to alimony and the allowances made for the benefit of the infant children, as well as that made to defendant's attorneys. As stated in the Burns Case, and others referred to therein, there is no fixed rule as to the amount to be allowed in such cases. The proof here shows that the land only of the plaintiff is worth at least $300,000 or $400,000, some witnesses placing it as high as $600,000. This does not take into consideration other property which he possessed. It is shown that he is now reaping royalties from the operation of some character of mines upon his land, but the extent of this is not shown, nor is there anything informing us as to the amount of the royalties which he is receiving. Enough, however, is shown to authorize us to fix a reasonable allowance to be paid monthly to the defendant and to each of the children during infancy, and which according to all the cases, should be sufficient in amounts to enable the beneficiaries to live comfortably, their station, needs, and circumstances considered, and considering also the ability of the plaintiff to pay. We have concluded that perhaps it would better subserve the interests of the family, including the defendant, that she be paid a monthly allowance instead of a lump sum as alimony, and that $200 per month for her, and $75 per month for each of the infant children until they become of age, is, under the facts of the case, reasonable and moderate. We are further of the opinion that the allowance of $750 to defendant's attorneys was too small. Considerable proof was taken at different points and upon different dates, and, under the circumstances, we have concluded that a fee of $1,000, to be paid to the defendant's attorneys, is extremely reasonable. It is therefore ordered that the judgment concerning the allowances to the defendant and her children and to her attorneys be modified, as herein indicated, and that plaintiff, in addition to furnishing the residence at Danville, be required to maintain it in repair and keep it insured for the use of the defendant and her children until they become of age, with the privilege of the adult ones living with her after that time, with defendant's consent, and with the privilege of herself occupying it until the further orders of the court, and this to be effectual from the date of the judgment below. Wherefore the judgment is reversed, with directions to enter a judgment consistent herewith. SAMPSON, J., dissents. (83 Tex. Cr. R. 382) CLAUNCH v. STATE. (No. 4640.) (Court of Criminal Appeals of Texas. May 15, 1918.) the laws of the United States as a retail malt liquor dealer; or any house located in any counwhich the sale of intoxicating liquors has been ty, justice precinct or subdivision of a county in legally prohibited, where the owner, proprietor or lessee thereof has posted a license issued by STATUTE the United States of America authorizing such owner, proprietor or lessee thereof to pursue the occupation and business of a retail liquor dealer or a retail malt liquor dealer." 1. INTOXICATING LIQUORS 45-MALT LIQUORS LICENSES REPEAL - OF "DISORDERLY HOUSE.' Pen. Code 1911, art. 496, defining as a disorderly house a place in prohibition territory where nonintoxicating malt liquors are sold, is in direct conflict with and repeals articles 157, 158, 160, levying an annual occupation tax on such business in prohibition territory, and no conviction can be had for failure to acquire the license. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Disorderly House.] 2. INTOXICATING LIQUORS 48-"NONINTOXICATING MALT LIQUORS." Nonintoxicating malt liquor, as used in Pen. Code 1911, arts. 157, 158, 160, 496, is a fermented malt liquor, containing alcohol in quantities insumcient to produce intoxication when used as a beverage. 3. INTOXICATING LIQUORS 17-NONINTOXI- in force. 4. LICENSES 7(1)-PROHIBITED BUSINESS. Courts will not enforce a law, nor can the Legislature pass one, which levies an occupation tax upon the business of selling an article in a district of the state in which its sale is prohibited. house statute is in Penal Code, art. 496, and [1-4] This amendment to the disorderly article 500 prescribes a penalty for its violation in the sum of a $200 fine and confinement in the county jail for 20 days. It was held by the Court of Civil Appeals. in the case of Johnson v. Elliott, 168 S. W. 968, in which the Supreme Court refused a writ of error, that the last-named statute repealed article 157, supra, the license statute, in so far as the latter authorizes the issuance of a license for the sale of nonintoxicating malt liquors in parts of the state where the sale of intoxicating liquors was prohibited. In that case Johnson, the appellant, sought a mandamus to compel Elliott, the tax collector, to issue a license for the sale of nonintoxicating malt liquors at a place in Tarrant county where the sale of intoxicating liquors was prohibited by law. He tendered the payment of the $2,000 tax, and otherwise complied with the requisites prescribed by articles 7476 and 7477, Revised Appeal from Fisher County Court; M. A. Civil Stats., supra. The mandamus was reHopson, Judge. On motion for rehearing. Motion granted, affirmance set aside, judgment of trial court reversed, and cause dismissed. For former opinion, see 199 S. W. 483. E. A. Watson, of Rotan, and Chas. L. Black, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. Appellant insists that, conceding the soundness of the views expressed in the opinion heretofore rendered to the effect that the law in question was valid, a reversal should result from the fact that by a subsequent act the Legislature repealed the law. The prosecution was founded upon a violation of article 157 of the Penal Code, which is on page 51 of the Acts of 1909, and amended by the Special Session of the same Legislature, page 397, and is in Vernon's Civil Statutes, art. 7476, and Penal Code, arts. 157, 158, 160. It levies an annual occupation tax of $2,000 on all persons selling nonintoxicating malt liquors. fused on the ground that article 496, supra, made it unlawful to sell nonintoxicating malt liquors in prohibition territory, and that consequently no license therefor could be issued. This ruling was correct, for courts will not enforce a law, nor can the Legislature pass one, which levies an occupation tax upon the business of selling an article in a district of the state in which its sale is prohibited. State v. Texas Brewing Co., 106 Tex. 121, 157 S. W. 1166; Rathburn v. State, 88 Tex, 286, 31 S. W. 189. The provisions of article 157, supra, licens ing and making lawful, upon payment of the tax, the sale of nonintoxicating malt liquors, in its application to prohibition territory, are manifestly conflicting to a degree rendering them irreconcilable with article 496, supra, which makes it unlawful to sell such liquors in such territory. Nonintoxicating malt liquor, as defined in our statute, and as used in each of the laws in question, is a fermented malt liquor, containing alcohol in quantities insufficient to produce intoxication when drunk as a beverage. See authorities cited in original opinion. The Legislature had the power as a police regulation to prohibit the sale of such liquors in territory where the sale of intoxicating liquors is prohibited by "Any house located in any county, justice pre-law, this right existing to protect public cinct or other subdivision of a county where health and morals, and to aid in the enforce the sale of intoxicating liquors has been pro- ment of the prohibition laws adopted under hibited under the laws of this state, in which the local option provision of the Constitution. such non-intoxicating malt liquor is sold or kept for the purpose of sale as requires a seller Ex parte Dupree, 101 Tex. 150, 105 S. W.. thereof to obtain internal revenue license under 493; Fitch v. State, 58 Tex. Cr. R. 367, 127 In August, 1910, the Thirty-First Legislature, at its Third Called Session (see page 32), passed an act amending the statute defining disorderly houses, and in this law as amended the following is found: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes S. W. 1040; Purity Extract & Tonic Co. v. I count of the escape of appellant. Motion to Lynch, 226 U. S. 192, 33 Sup. Ct. 44, 57 L. Ed. reinstate appeal. Overruled. 184, and other cases cited in the original opinion. The appeal was dismissed without written opinion. E. B. Pickett, Jr., of Liberty, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. The conflict between the two provisions (articles 157 and 496, supra) is illustrated by the fact that the appellant, who was here prosecuted for selling nonintoxicating liquors at a certain place in Fisher county without a On Motion to Reinstate Appeal. license, is also prosecuted under article 496 for keeping a disorderly house in the same DAVIDSON, P. J. [1] On a former day of place; this based upon the fact that he kept the term this appeal was dismissed on acin his house for sale nonintoxicating malt count of the escape of appellant. This was liquors. In this latter case, No. 4615, on the made to appear satisfactory to the court at docket of this court (204 S. W. 436), he has the time. Motion is made to reinstate the been convicted and condemned to pay a fine appeal. The facts show, both in the motion and serve a jail penalty, and the conviction to reinstate and the original showing, that has been affirmed. His conviction in this defendant had escaped; that he broke jail case is for failure to obtain a license which near midnight, and was captured, by the under the law could not be issued to him. sheriff the next day some time, about 12 because the Legislature by the passage of miles from the jail from which he escaped. article 496, supra, as construed by the civil There is nothing to indicate in the motion courts, within whose jurisdiction is the ques- that it was his purpose to return, or that he tion of the issuance of license, has determined was returning. The sheriff captured him. that in prohibition territory no license for the Under all the authorities, which are found business in question can be issued. The Leg- collated in Vernon's Crim. Stats. pp. 875, islature doubtless reached the conclusion 876, this was an escape, and not evidence of that the passage of article 496, prohibiting a voluntary return. The general proposition sales of nonintoxicating malt liquors in sub-is laid down and supported by all the audivisions of the state where the sale of in- thorities that where a defendant, pending his toxicating liquor was prohibited, was a more appeal, escapes from the custody of the shereffective way of accomplishing the purpose in iff, and not voluntarily returning within ten view of preventing sales of nonintoxicating days, the appeal will be dismissed, and where malt liquors in such districts than by means he has been recaptured before the lapse of of the license statute mentioned, and to have ten days his escape, nevertheless, divests the adopted the prohibition statute in lieu of court of the jurisdiction of the appeal. A the license statute and thereby annul the recapture within ten days, while preventing latter so far as such districts are affected. a voluntary return of the defendant into For the reasons stated, the motion for re- custody, will not restore jurisdiction of the hearing is granted, the affirmance of the case appeal. Lunsford v. State, 10 Tex. App. is set aside, and the judgment of the lower 118; Ex parte Wood, 19 Tex. App. 46; court is reversed, and the cause dismissed. Loyd v. State, 19 Tex. App. 137. These decisions follow the statute, which is article 912, C. C. P. 1911. (83 Tex. Cr. R. 348) GILBERT v. STATE. (No. 4846.) [2] It is claimed in the motion that there was an issue on the trial of defendant's insanity. This was decided against him by the (Court of Criminal Appeals of Texas. May 1, jury, but this would not entitle him to have 1918. Rehearing Denied May his appeal reinstated any more than any Appeal from District Court, Liberty Coun-viction. The only matter to be reviewed by ty; L. B. Hightower, Judge. Frank Gilbert was convicted of crime, and he appealed. Appeal was dismissed on ac the court upon motion to dismiss the appeal on account of escape would be the matters involved in the escape. The question is escape from prison during the pending of the appeal, then the jurisdiction of the appellate court shall no longer attach in the case; and whether he voluntarily escaped, and not what the merits were on the trial of his case before the jury. The motion to reinstate the appeal will upon the fact of such escape being made therefore be overruled. CRIMINAL LAW 1131(5)-APPEAL-ESCAPE Under Code Cr. Proc. 1911, arts. 912, 913, providing that if defendant, pending appeal in a felony case, shall escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach, and the appeal be dismissed, but that the order dismissing appeal shall be set aside if it shall be made to appear that defendant voluntarily returned to the custody of the officer from whom he escaped within ten days, etc., where defendant, convicted of burglary and sentenced, escaped from jail while his case was pending on appeal in the Court of Criminal Appeals, his purpose being to escape permanently, and he did not voluntarily return or offer to do so, his appeal must be dismissed on motion of the Attorney General. to appear, the court shall, on motion of the Attorney General or counsel for the state, dismiss the appeal," thereby removing all discretion the court formerly had. This act was held constitutional and valid. Gresham v. State, 1 Tex. App. 458, and other cases. Said act made no provision for a reinstatement of the appeal in the event of the voluntary return. On December In Young v. State, 3 Tex. App. 385, it was shown that in October, 1877, he was convicted of a felony and appealed. 12th the Assistant Attorney General made a motion to withdraw the submission and to dismiss the appeal because appellant had escaped from custody on December 8th. The motion was granted, and the appeal dismissed on December 12th. On December 19th he made a motion to set aside this dismissal and reinstate the case because on December 17th, without having been arrested by any one, he voluntarily returned and surrendered himAppeal from District Court, Hale County; self to the custody of the sheriff, and was R. C. Joiner, Judge. then safely confined in the jail to await the C. E. Gibson was convicted of burglary, decision of his case by this court. and he appeals. Dismissed. W. W. Kirk, of Plainview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. PRENDERGAST, J. Appellant was convicted of burglary on August 31, 1917 and his punishment assessed at two years in the penpunishment assessed at two years in the penitentiary. He perfected his appeal to this court on September 22d. His appeal bond was fixed at $1,500. He was first arrested by the sheriff of Hale county and placed in jail on June 3d on a charge of swindling. His bond on that case was fixed at $1,000. He was unable to give it, and was held in jail by the sheriff continuously thereafter, except when he effected his escapes from jail as hereinafter stated. The Assistant Attorney General has filed a motion to dismiss this appeal because appellant broke jail and escaped after his appeal and did not voluntarily return, and therefore this court has no jurisdiction. Appellant resists this motion and claims that he broke jail and escaped "for the purpose of getting out to his uncle's for the purpose of seeing about making an appeal bond (in this case), or why the bond had not been made, with the intention of returning to said jail." Before stating the facts, the law applicable will be given. Before 1876 the authority of the court to dismiss and reinstate a case because of an escape pending appeal was in the sound discretion of the appellate court. There was no statute on the subject. Moore v. State, 44 Tex. 595. On August 21, 1876, p. 217, the Legislature for the first time enacted "that in case the defendant shall make his His affidavit to the above effect was supported by the affidavits of the sheriff and one of his deputies. There were other matters in the respective affidavits, but are unnecessary to here state. It is thus seen that he volunta rily returned and surrendered within ten days of his escape, and that after his surrender he was held in jail. This was the first case decided by this court after said act of case decided by this court after said act of 1876. This court therein held: "We are of opinion that it would be a danterly to abrogate the provisions of the law gerous precedent, and one which would tend utwith regard to escapes, for this court to exercise the authority of granting the proposed reThe lief under the circumstances of this case. law is 'that, in case the defendant shall make his escape from prison during the pending of the appeal, then the jurisdiction of the appellate court shall no longer attach in the case; and, upon the fact of such escape being made to appear, the court shall, on motion of the Attorney General or counsel for the state, dismiss the appeal.' Acts 15th Leg., p. 217. The dismissal of the case put an end to the jurishas been shown why (if possible after it is once diction of this court over it, and no good cause lost) we should resume it again. It may appear to be a hardship upon appellant, but, if so, it is one for which no one is responsible or blamable but himself." The next case decided under said act was Brown v. State, 5 Tex. App. 127, wherein it was shown that Brown was convicted of a felony in July, 1878, and appealed. On October 30th, pending appeal, the Assistant Attorney General moved to dismiss the case because appellant had escaped. On that date this court granted the motion and dismissed the case in compliance with said act of August 21, 1876. On November 18, 1878, Brown For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |