Merrell v. State, 57 S.W. 289

Merrell v. State

57 S.W. 289 | Tex. Crim. App. | 1900

Appellant was convicted of seduction, and his punishment assessed at confinement in the penitentiary for a term of two years, and he prosecutes this appeal. *24

There are a number of assignments. However, we will only consider such as we deem important.

The court gave the following instruction to the jury: "You are further instructed that the fact that defendant was under twenty-one years of age, and the fact that his mother may have refused to allow him to marry the said Nora Livingston, is no defense in this case." Appellant excepted to this charge, and insists that, in view of the evidence, the court should have given the converse of the proposition contained in said charge. This question has already been decided by this court adversely to appellant's contention. Harvey v. State, 53 S.W. Rep., 102.

Appellant, however, urgently insists that inasmuch as appellant offered to marry prosecutrix, and after showing he was under twenty-one years of age and that his mother refused to give her consent to the marriage, that his offer to marry her was made in good faith, and under the statute it would relieve him of the prosecution. The language of article 969, Penal Code, is as follows: "If the parties marry each other at any time before the conviction of the defendant, or if defendant in good faith offer to marry the female so seduced prior to the time he pleads to the indictment, no prosecution shall take place, or if begun it shall be dismissed." It will be seen that the statute with reference to seduction makes the offense complete when carnal knowledge of the female is procured by virtue of a promise to marry, and the subsequent article simply authorizes a dismissal of the case under certain contingencies. These contingencies are the marriage of the parties, or an offer made on the part of the seducer in good faith to marry the prosecutrix. We take it that "good faith" here means ability to consummate the marriage. The law requires a promise to marry to be made in good faith, and takes no note of appellant's inability to consummate the marriage. As far as the crime is concerned, it is already committed, and appellant can only escape punishment for his crime by complying with the statute that authorizes a dismissal of the prosecution. Any other construction would lend the sanction of the law to a seducer who was under minority to ply his seductive arts, and thus encompass the ruin of his victim, and afterwards depend on the interference of his parents to prevent the enforcement thereof. Polk v. State,40 Ark. 482.

In this same connection appellant also insists that, under the proof, he should have had a charge that the death of the prosecutrix relieved him of the prosecution, or, at least, that this issue should have been submitted to the jury, inasmuch as he introduced testimony tending to show that he was not to marry the prosecutrix until he was twenty-one years of age, by the terms of the agreement, which was some year or two off, and that the prosecutrix died on March 18, 1899, long before the time elapsed at which he was to marry her. We do not understand the statute to bear any such construction as is contended by appellant. The statute says: "If the parties marry each other at *25 any time before the conviction of defendant, that he will be relieved of the prosecution." Now, the testimony shows here, beyond any controversy, that when the prosecutrix was found to be enceinte prosecutrix's father approached defendant in order to induce him to marry his daughter. Appellant at the time failed to offer in good faith to marry prosecutrix, but referred the matter to his mother, who refused to grant her consent, and we understand appellant relies on this want of consent of his mother as a bar against this prosecution; that is, he absolutely refused to marry her, after being informed by her father of her condition. This was before her death, and at a time when he might have married her. And we hold that, notwithstanding there may have been an agreement to marry at some future time, and not at that particular time, under the terms of the statute, to relieve himself of prosecution, it was at least his duty then to offer in good faith to marry the prosecutrix. In failing to do so, the statute no longer afforded him a shield, not to wipe out the offense, for that was already committed, but to bar a prosecution for said offense.

Appellant complains of the failure of the court to sufficiently define to the jury in his charge the term "seduction," and in that connection contends that the court erred in refusing to give certain special instructions requested by him. We do not find in the court's charge any attempt to define the term "seduction." In the third and fourth paragraphs of the charge, the court applied the law to the facts of the case. These charges are as follows: "(3) Now, if you believe from the evidence beyond a reasonable doubt that defendant, in the county of Johnson, and State of Texas, about the time alleged in the indictment, by a promise to marry said Nora Livingston, did then and there have carnal intercourse with her, and that she yielded to his wishes in that respect because of the promise on his part, if any, to marry her, and by reason of said promise he secured her to yield her person to his carnal desires, then you are instructed that you will find him guilty as charged, and you will assess his punishment at confinement in the penitentiary for not less than two nor more than five years, or by fine not exceeding five thousand dollars, and so say by your verdict. (4) But, on the other hand, if you believe he had carnal knowledge of her, and that the same was not secured by him upon the promise of marriage to her, but that she yielded her person to his carnal embraces simply from her own will, and not because of any promise to marry, then you will find him not guilty, and so state, or if you believe that she had had intercourse with some person before she copulated with defendant you will acquit him." Appellant in this connection cites Putnam v. State, 9 Texas Criminal Appeals, 454, and Cole v. State,40 Tex. 147. The charge of the court in Putnam's case is very much like the charge in the present case. The court in this opinion thoroughly discussed the meaning of the term "seduction," citing various authors, and reversed the case because of the insufficiency of the charge. It occurs to us, in view of the facts in this case, that the court should have given a charge defining the *26 meaning of the term "seduction," inasmuch as it was made an issue in the case as to whether appellant plied the arts and wiles of the seducer, gained the affections of the prosecutrix, and then drew her aside from the path of virtue which she was pursuing, and corrupted and deceived her, and thereby induced her to sacrifice her virtue to him under the promise of marriage. Usually the injured female testifies, and details the circumstances of her betrayal, showing how her affections were entwined, the circumstances of her betrothal, and how she was deceived and led to her ruin. In this case the alleged injured female did not testify, as she died before the trial, and we are thus left to gather from circumstances the facts attending the prosecution. The mother and stepfather of the prosecutrix knew of her betrothal simply from the fact that appellant is shown to have asked their permission to marry prosecutrix. Casey's and Drake's evidence both relate to confessions of appellant that tend to show he was trifling with the affections of prosecutrix. On the other hand, Mrs. Jones (mother of appellant) testifies to facts that tend to show prosecutrix was not a chaste woman. Defendant's own evidence tends to show that prosecutrix surrendered her virtue to him without any promise of marriage, and that she was not a maiden when he first had carnal knowledge of her, and there is testimony of others tending to reflect on the character of the prosecutrix. Now, with all this testimony before the jury pro and con, raising the issue as to whether or not the prosecutrix was actually seduced, — that is, led astray from the paths of virtue by appellant under the promise of marriage, — we think the court should have fully instructed the jury as to the meaning of the term "seduction."

Appellant also insists that the court should have given his special requested instruction to the effect that the sexual intercourse must not be under a promise to marry in the future, but immediately. We think this instruction was properly refused. Bailey v. State, 36 Tex.Crim. Rep..

We do not deem it necessary to discuss other questions raised by the assignments, but, because of the failure and refusal of the court to give a sufficient definition of the term "seduction" in the charge, the judgment is reversed and the cause remanded.

Reversed and remanded. *27