#### ELMORE v. STATE.

No. 16686.

Court of Criminal Appeals of Texas.

May 23, 1934.

State’s Rehearing Denied in part and Granted in part June 20, 1934.

Davis & Davis, of Haskell, for appellant.

Lloyd W. Davidson, State’s Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is wife desertion; the punishment, confinement in the penitentiary fon eighteen months.

It was alleged in the indictment that, the offense was committed on or about December 21, 1933. The indictment was returned into court and filed on June 6,1933, which; was more than six months before the offense was averred to have been committed. The sixth requisite of an indictment under the provisions of article 396, C. C. P., is that “the time mentioned must be some date anterior to» the presentment of the indictment, and not so. remote that the prosecution of the offense is-barred by limitation.” The defect is fatal.. Eshom v. State, 120 Tex. Cr. R. 136, 48 S. W.. (2d) 631, and authorities cited.

The judgment is reversed, and the proseoution ordered dismissed.

PER CURIAM.

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 State’s Motion for Rehearing;.

MORROW, Presiding Judge.

The state having perfected the récord by the filing of a corrected indictment, the appeal will be considered on its merits.

The prosecutrix, Levada Elmore, and the appellant, J. B. Elmore, were married on-the’ 21st day of December, 1932. The parties resided in Texas, but the ceremony took place in Oklahoma, where the parties mentioned went in company with relatives of the prose-cutrix. Immediately after the- marriage;, they returned to their respective homes to-live. There is evidence that the prosecutrix, gave birth to a child’ on'the 12th day of March following the marriage in December. However, there is no evidence that appellant was the father of the child. From the testimony of the .prosecutrix, it is shown that both before and at the time of the marriage she was living with her mother upon a farm in Haskell county and that the appellant was living with his father op a farm in the same county. Appellant was a youth about eighteen years of age and was attending school. At the time of the marriage, and since that time, the prosecutrix lived with her mother; had no property, and had no- means of support other than such as she- might earn by *108labor. At tbe time of tbe marriage tbe appellant bad about $2 and tbe prosecutrix bad about tbe same amount. From tbe testimony of tbe prosecutrix it is also shown that at tire time of the marriage it was agreed that appellant should finish his school before they lived together. From her testimony we quote: “Tbe understanding was that we were to get married but were not to live together till be finished school; that was this year; school didn’t close until sometime in the spring of 1933.”

Tbe testimony of tbe prosecutrix touching cohabitation is somewhat confusing. Tbe only evidence indicating that tbe parties lived together as man and wife is the statement as follows: “The night that we returned from Oklahoma on tbe truck, we lived together as man and wife after we were married; that was after we left Oklahoma and before we reached Munday.”

However, her testimony is to tbe effect that the. appellant had never, at any time, spent any night with her. At the time of the marriage several of the relatives of tbe pros-ecutrix accompanied her and appellant, all of them, as we understand the record, riding in the truck. From her testimony we quote further: “J. B. has never been back and spent the night or a day with me since we got back to Munday from Oklahoma. * * * My understanding of the arrangement was that we were not to live together until he had finished high school and he had not finished school on or about the 21st day of December, 1932.”

Appellant remained in school until March, 1933. He was nineteen years of age at that time. He had tried to get a job. He was living with his father, who had a number of children. The prosecutrix had also tried to get work, and obtained some work on a farm.

There are several bills of exception in the record. However, our view of the evidence renders a discussion of the bills unnecessary.

 The evidence is definite to the point that there was a prenuptial agreement or contract. Such contracts are recognized as permissible and binding when properly made. See Oyc. of Law and Proc. vol. 1, p. 320. The effect of such agreements touching property rights rests upon statutory enactments in this state. See Rev. St. 1925, art. 4610; Tex. Jur. vol. 23, p. 24. From the uneontroverted evidence, the contract in the present instance was specific in its terms, and no willful breach of it upon the part of the appellant is shown by the evidence. The legal effect of such agreement, as it relates to a criminal prosecution, is a matter upon which we are unable to express an opinion further than to declare that the facts developed do not impress us to be such as justify the conclusion that the appellant was shown to be guilty of the offense with which he is charged.

Article 602, P. 0.1925, as amended by chapter 276, Acts of 42d Legislature, Regular Session (Vernon’s Ann. P. O. art. 602), reads as follows: “Any husband who sháll willfully desert, neglect or refuse to provide for the support and maintenance of his wife who may be in necessitous circumstances * * * shall be confined in the penitentiary for not more than two years, or be confined in jail for not more than six months, or fined not less than Twenty-five ($25.00) Dollars nor more than Five Hundred ($500.00) Dollars, or be punished by both such fine and imprisonment in jail.”

The term "willful,” as it has often been interpreted in the criminal statutes, means, “with evil intent, or legal malice, or without reasonable ground for believing the act to be lawful.” See Thomas v. State, 14 Tex. App. 200.

In the case of Trice v. State, 17 Tex. App. 43, it was said: “When the word willful is used in a 'penal statute to characterize the forbidden act, it means evil intent or legal malice, or without reasonable ground to believe the act to be lawful; and the court charging a jury upon a case involving this question, should, as an essential part of the law of the ease, instruct the jury in the legal meaning of the term willful.” See Townsend v. State, 121 Tex. Or. R. 79, 51 S.W.(2d) 696, and numerous citations therein affirming the definitions quoted.

Deeming the evidence insufficient to support the conviction, the state’s motion for rehearing is overruled, the judgment is reversed, and the cause remanded.