This action was brought by Stonewall Jackson Marckley hereinafter called plaintiff, to annul his marriage with Rose Offer Marckley, hereinafter called defendant. The trial court granted judgment annulling said marriage and declaring that a child born to defendant during her marriage with thе plaintiff was not the child of the plaintiff.
Plaintiff, Marckley, veteran gunner on a B-24 bomber in the Army of the United States, had one of his legs shot off in action in the Southwest Pacific. It is odd that plaintiff’s age is nowhere disclosed in the record. After hospitalization in an army hospital at Temple, Texas, he was discharged about the middle of December, 1943, and returned to his parents’ home in San Antonio. On his first night in San Antonio he mеt Rose Offer, a sixteen-year-old school girl, at a friend’s home. The next night he went driving with her and another couple and had sexual interсourse with her on the rear seat of the car in which they were riding, the other couple occupying the front seat the while.
About еight months later, on August 13, 1944, the girl gave birth to a child, named Robert Dwight Marckley, which has survived the ensuing vicissitudes of the trio.
In the meantime, on June 9, 1944, the cоuple drove with their respective mothers to Seguin and were there married. Returning to San Antonio, it seems the wife’s father drove her frоm her parental home. She went from there to the home of her husband’s parents, where she spent the ensuing two nights, and then, appаrently, returned to and has since resided in her parents’ home.
Thereafter, on July 7, 1944, plaintiff brought this suit, and in an amended peti *9 tion filed on September 22, 1944, prayed “that said purported marriage between the plaintiff and defendant be dissolved and declared null and void and that the defendant be adjudged to be not entitled to wear the name of this plaintiff and that her former name Rose Offer be restored to her * * * ”
The cause was tried to the court without a jury on December 20, 1944, and after a hearing judgment was rendered “that the purported marriage entered into between plaintiff and defendant on or about June 9, 1944, be and the same is hereby annulled, set aside and held for naught, because having been entered into by the plaintiff under duress and fraud, and that same is in no wise binding upon the plaintiff. * * *
“The Court further finds as a matter of fact that the minor child herein, Robert Dwight Marсkley, is not the child of the plaintiff herein, and that the plaintiff is under no obligation to contribute to its support and maintenance.”
As will be sеen, the judgment annulling the marriage and bastardizing the child is based upon the trial judge’s conclusions that plaintiff entered into the marriage “under duress and fraud.”
The charge of duress rests upon allegations that preceding the marriage defendant and her mother threatened plaintiff with prosecution if he refused to marry defendant, and that by such threats plaintiff was forced to enter into the ceremony. Thеse allegations were themselves, as a matter of law, insufficient, for it is well settled in this State that such threats to prosecute onе admittedly guilty do not authorize judgment annulling a marriage. 28 Tex.Jur. p. 727, Sec. 30; Johns v. Johns,
The judgment of annulment was also básed upon the ground that plaintiff was fraudulently induced to enter into the marriage with defendant in' that prior to or about the time of his admitted illicit sexual intercourse with defendant before his marriage to her, defendant was guilty of like intercourse with other men, although representing to plaintiff that she had not been guilty of such transgressions. In our opinion the record will not support annulment upon any ground that plaintiff was deceived by defendant with reference to her virtue оr chastity, or good behavior, prior to the occasion when plaintiff led her into an admittedly illicit act of sexual intercoursе. It is obvious, and was unblushingly admitted by both, that on the first occasion of being out together they freely and of their own volition and without any preliminаry threats, promises or other inducing considerations, engaged in that act By this means plaintiff came to know defendant as she was, аnd whatever she was, and if she was not in fact then or theretofore of easy virtue, or unchaste, or immoral, plaintiff led her into the сategory at a moment and under such circumstances that he should be forever estopped by every consideration of decency and fairness to invoke equity and the law of the land to free him from a normal and natural consequence of his own doing, еspecially as against a sixteen-year-old school girl. Huntley v. State,
Moreover, there was no proof of defendant’s antenuptial misconduct, except with plaintiff himself. It is true plaintiff offered to prove by deposition of another man that he had sexual intercourse with defendant before or about the time of her illicit intercourse with plaintiff, but the trial judge refused to admit such evidence upon the reasonable and just ground that a man who would give such testimony in open court or by deposition was wholly unworthy of belief, and the trial judge himself declared he would not believe such witness even if his testimony was- in evidence. Plaintiff makes a point that this ruling of the judge wаs error, but the point is not efficiently supported in the record and will be overruled.
To aggravate the vice in plaintiff’s position in this сase he alleged and obtained judgment declaring that he was not the father of the child admittedly born in lawful wedlock. Plaintiff’s position is
*10
withоut merit. He admits illicit intercourse with defendant before their marriage, admits marriage to her under circumstances which do not in law imply fraud or duress and admits that this child was born in lawful wedlock, within the not abnormal period of about eight months after the admitted act of intercourse. In this situation the law presumes the legitimacy of the child. 6 Tex.Jur. p. 368, Sec. 11; McCullough v. McCullough,
The judgment is reversed and judgment will be here rendered that appellee take nothing by this suit.