Besch v. Besch

Moore, J. The charge of the court to the jury in this case in the court below was erroneous. The evidence before the jury is, in our opinion, not only sufficient to have warranted them in finding a verdict for the plaintiff, but also to have authorized the court apon the return of the verdict, to decree a divorce. The fact that a husband shall have left his wife for three years [392] with the intention of abandonment, is made by the statute a specific cause for divorce. It is immaterial what were the circumstances attending the separation, if the wife is in no manner chargeable with it either by act or consent. That the separation was not accompanied by wanton acts of outrage or cruelty on the part of the husband towards her, is of no importance. It is the fact solely of his separation from her for the requisite length of time, with the continuing intention on his part during such time, not-to perform his matrimonial obligations, which entitles her to a rescission of their matrimonial contract. But the mere absence, or separation of the spouses for three years, does not authorize the divorce, or necessarily lead to the conclusion that there was the intention of a continuing separation or abandonment. And it is therefore correctly held in Hare v. Hare, 10 Tex. R., 355, that the plaintiff should state such facts as will show that the abandonment was really voluntary, or without sufficient cause on the part of the defendant, and was consequently the offensive desertion contemplated by the statute. But the' law does not contemplate that the wife shall in all cases show by direct testimony that the separation by the husband was with the improper intention reprobated by the law. As a general rule, the intention with which an act is done can only be ascertained by circumstantial evidence. The inward objects and purposes of the mind, when in violation of moral or legal duty, are more frequently and truly indicated by circumstances, than by open and unequivocal acts or declarations. In this case, we think the testimony amply sufficient to induce the belief that the separation from the plaintiff by the defendant was with the intention of abandonment; and to repel any just inference that it was voluntary on her part or authorized by sufficient cause. The judgment is reversed and the cause remanded. Reversed and remanded*