134 S.W. 709 | Tex. Crim. App. | 1910
Lead Opinion
This conviction was for seduction; the punishment assessed being four years’ confinement in the penitentiary.
The alleged seduced female testified that appellant had sexual intercourse with her on account of a promise to marry; that this occurred about the last of June or first of July; that she submitted to appellant because he promised to marry her, and she thought him true; that she loved him, and thought he would fulfill his promise; that appellant told her he would marry her if she submitted. A child was born on the 15th day of the following March. The parties were about the same age. Coming down to the particular facts of the first intercourse, she said it occurred out by the garden at night after they had returned from an ice cream supper, a distance of about six miles from where the act occurred. The prosecutrix says she came back from the supper in a wagon in company with several other people; that she got out of the wagon at the big gate just in front of the house; that when she got out of the wagon appellant asked her if she would meet him out by the garden. She further testified: “After we got to the house, he asked me if I would not come out there and talk to him. I was fixing to go to town the next morning, and he asked me if I would, and I did not want to go, and he insisted on my coming, and begged me to come, and I went. When we got to the door, he said he wanted to talk to me, and asked me if I would go with him out- there. He said he would wait for me, and I went in the house and put up my fan and my handkerchief and some things, and went in and turned the cover down on my bed. The reason I went in the house, I knew they were all awake, and I went in there and slipped out. I didn’t want them to know I left the room at all. X pulled off my shoes and went out in my stocking feet I did not change any of my clothes, and did not take off any of my clothes. When I came out, he was out by the side of the garden waiting for me, and he asked me to sit down, and I sat down, and we talked on awhile, and he asked me to submit to him, and he promised to marry me. I don’t know that I can remember just every word he said to me, but he asked me if I still loved him, and I told him, ‘Yes,’ and he asked me to submit, and I would not do it, and he said, ‘Well, you know I would not harm a ha.ir on your head.’ He says, ‘You know X would not betray you.’ He says, ‘You know I would not harm you for anything on earth.’ He just asked me if I would let him have it, and I didn’t want to at first, and he kept insisting, and I finally agreed. I asked him what would he do. I says, ‘People will be finding this out.’ He says, ‘No, they won’t never know anything about it.’ He says, ‘We mean to get married, and we will get married before anybody knows anything about it.’ He says, ‘There will be no harm done, for nobody knows it.’ I says, ‘Well, maybe not.’ I suppose that was somewhere between 10 and 11 o’clock. I did not have any feeling or desire for sexual intercourse right at the time that I consented and did. not have any desire for it before I consented. He had his arms around me while we were sitting down. I put my arms around him, and he put his arms around me. We sat there in that position but a very few minutes. He had not said anything to me along that line on the way home. - There was no opportunity. There were others in the wagon. We were sitting by the side of one another in the wagon, but we did not have our arms around one another. It was not a very light night, but the moon was shining some. When we got to the door, we talked a few minutes, and he asked me if I would meet? him out there; said he wanted to talk to me awhile. I went in the house first, because I knew they were all awake and knew they would all get up, and I knew better than to go out there just as I was, and I went in the house and made like I was going to bed, and I pulled off my shoes, turned down my bed, and slipped out. I had no idea what he wanted me to go out there for except what he said. He had hugged me before that time, and I had hugged him several different times. I had sat in his lap. He had not gone with me so often before that happened for some little bit. We had had a falling out, and we had just made up I believe on Monday night before that, and that was on Saturday night.”
There is testimony by this witness of two other acts between the parties at intervals of four weeks which occurred under similar circumstances to those already testified. There is evidence that a complaint was filed against appellant some months after this
In order to constitute the crime of seduction, there must be a seducing or leading away of the girl from the path of virtue; the intercourse had with the seducer; the promise of marriage. The alleged seduced female must be corroborated in essential elements of the alleged offense. We are of opinion the evidence does not show that the prosecutrix was corroborated as the law requires. It further appears from the testimony of the prosecutrix that, while they had been sweethearts for a couple of years, they had had a “falling out,” and had only made friends on the Monday night previous to the alleged intercourse. She does not state there had been an agreement to marry prior to the night of the first act of intercourse. This is to be assumed, if at all, from the fact that, they had been sweethearts before that time, but had broken off their friendly relations. So far as any positive evidence on her part is concerned, the first promise of marriage was made out by the garden after she had gone out of the house to meet him at the designated and agreed point. We are therefore of opinion that, under the facts stated, the evidence does not justify the conviction. There is not sufficient corroboration of the prosecutrix as contemplated by the statutory definition of the offense of seduction and the decisions in this state. Putnam v. State, 20 Tex. App. 454, 16 S. W. 97, 25 Am. St. Rep. 738; Wisdom v. State, 45 Tex. Cr. R. 215, 75 S. W. 22; Simmons v. State, 54 Tex. Cr. R. 619, 114 S. W. 844.
The judgment is therefore reversed, and the cause is remanded.
Dissenting Opinion
(dissenting).
In that invaluable repository of the common law, Coke’s Commentaries on Littleton, that doughty old knight of the law observes (liber 3, § 378) that: “By reasoning and debating of grave learned men the darkness of igporance is expelled, and by the light of legall reason the right is discerned, and thereupon judgment given according to law, which is the perfection of reason. This is of Littleton here called legi-tima ratio, whereunto no man can attaihe but by long studie, often conference, long experience, and continúan observation. Certaine it is, that in matters of difficultie the more seriously they are debated and argued, the more truely they are resolved, and thereby new inventions justly avoided.”
We, in this case, seemed not to have justified the remarks of the learned author. On the contrary, the more we have consulted about the case, and these consultations have been both frequent and prolonged, the more widely apart have we drifted. The case has now been with us so long that a further delay in disposing of it would be injustice alike to appellant and to the state, and so we find ourselves at the parting of the ways, and since I cannot agree with my Brethren oi-go with them, it must result as it did with Lot and Abraham, in the days of the patriarch, that we shall “separate ourselves the one from the other”; the majority speaking for the court and registering its decree, while I am left in the solitary and inhospitable domain of dissent. I recognize that no dissenting opinion can ever justify itself unless it is right; that even then it is most unavailing unless it has the effect to arrest attention, excite inquiry, provoke discussion, and ultimately lead to the ascertainment of the truth. As to whether I am right in my conclusions, both as to the law and the facts of the case, indeed as to whether I am right on either the law or the facts, will be determined by a generous profession of this and other times, and to this judgment, always in the long run both fair and just, I shall make my appeal. I trust, too, ■ that, however lacking in strength and vigor the opinion may be, it will arrest attention, excite inquiry, provoke discussion, and lead the court back some time to what I conceive to be the ancient and settled truths of the law. I am not unmindful of the respect and confidence with which the judgment of my Associates will be received. My own respect and esteem for them would and should indeed constrain and withhold this opinion except for the certainty I feel that I am right. Thisi opinion so' entertained by me results after weeks and months of examination and re-examination and all the study I can give to any case. With the views thus entertained, I should feel that I had committed treason to my own convictions, and worse than treason to the law which I not only love but am sworn to support and uphold, if I did not dissent.
From my point of view, the conclusion of the majority is not only erroneous, but the
It would be conceded, I am sure, by my Associates, that the laws of this state which make for the protection of the home should be upheld in all their vigor. Any interpretation of our laws, not in fairness demanded, which would undermine and sap the strength of the law which safeguards the home and its dearest and most important interests, would be worse than the “pestilence that walketh in darkness, or the destruction that wasteth at noon day.” They must recognize, as I do, the truth of the counsel which Laertes gave to Ophelia that:
“The chariest maid is prodigal enough, If she unmask her beauty to the moon.”
And while I recognize that we may not and cannot wholly, in the decisions of this court, instill in the minds of our people those lessons of purity learned at the fireside and strengthened by religious teaching, still, in supplement of these, we can and ought to so administer the law according to its true intent and purport without injustice to any man as to throw proper protection around those whose inexperience and attractiveness point them out as victims of the libertine.
Katie Weddle was a young woman living in the vicinity where appellant resided. Neither her father nor her mother were living. In the spring of 1904, when she first became acquainted with appellant, she was living at his brother’s, Will Nash’s. She and appellant had been sweethearts for about two years, and during all that time she was his companion, and he waited on her. The first act of carnal intercourse, according to her testimony, was had on the last day of June or first of July, 1906. She states: “I submitted to him because he had promised to marry me, and I thought him true, and I loved him, and I thought he would fulfill his promise. He told me that he would marry me if I submitted to him.” She further testifies: That there were two other acts of •intercourse. The second act occurred four weeks from the first; she says that at this time Minnie Nash, appellant’s sister, came to town after her in a buggy, and that she went down to Mr. Nash’s, the father of appellant, and stayed there Saturday night and Sunday night That they went to Mt. Olive to prayer meeting, and that the act of intercourse took place as they were coming back home. The details need not be here set out. The third act of intercourse occurred on the occasion of appellant’s taking prosecu-trix to church, where they went in a wagon most of the way with appellant’s mother and sister and some of the rest of the relatives. It developed as a result of the intercourse that a child, a boy, was born on the 15th day of March, 1907. Soon after this an affidavit was filed against appellant charging him with the offense of seduction, and he fled the country, and remained away about a year. During this time the sheriff of Delta county made a search for him without being able to find him. Numerous witnesses were introduced, all of whom testified that the reputation of Miss Weddle as a chaste and virtuous woman was good. They all testified that the relations between appellant and Katie Weddle were intimate and their association frequent Mrs. Hughley says: “After appellant started there was not any other one kept her company until after I left there; I don’t think I ever saw any one else with her but Bob. They would go out in -society and places of entertainment and church and things of that kind.” George Willis says that during the time appellant associated with her, which covered a period of a year or such matter, and while he was keeping her company, he does not recollect but one other boy keeping her company, and that he went home with her one night from prayer meeting, and that was Ezell Scott; but appellant was with her constantly at entertainments, church and things of that kind; that appellant would be with her nearly every time witness would be at an entertainment or at church or anywhere. Frank Hearne testified that appellant had waited on Miss Weddle something like two' years; that he would see them together at many different places, parties, preaching, and Sunday School, and entertainments of all kinds, such as were in the country. Mrs. Hearne testified that appellant went with Miss Weddle something like two years, and that during this time he was keeping her company she did not remember ever seeing any other young man with her unless it was Ezell Scott; that she would see appellant and Miss Weddle together at church, entertainments, and Sunday School and places of that kind. Ed Elliott testified that appellant kept company with Miss Weddle something like a year or two, and that while he was keeping her company witness did not know of any one else going with her; that he would see them at different places together,
The only question raised on these facts is as to whether the corroboration is sufficient as to the promise of marriage and the intercourse, and the opinion of the majority can only be justified and sustained on the ground that the corroboration by the testimony of other witnesses is indispensable in respect to the promise of marriage and the act of intercourse, and that, this being true, the evidence of corroboration in respect to these matters is not sufficient. In determining the sufficiency of the evidence on appeal, we must assume as true not only every fact distinctly proven, but those inferences and conclusions of fact which in fairness the jury could draw from facts directly and positively established. It can no longer be doubted that it is the law that both the act of intercourse and the promise of marriage can be established by circumstantial evidence. No lawyer can, as I conceive, give any reason why the law of circumstantial, evidence should not apply in cases of seduction as well as in cases of murder or theft. In the case of Beeson v. State, 130 S. W. 1006, the court below instructed the jury, among other things, as follows: “You are, however, instructed that corroborative evidence need not be direct and positive independent of the prosecutrix, Miss Edna Blackshear; but such facts and circumstances as tend to support-her testimony, and which satisfy the jury that she is worthy of credit as to the facts essential to constitute the offense of seduction as hereinbefore defined to you, will fulfill the requirements of the law as to corroboration, and it is for you to say from all the facts and circumstances in evidence before you whether she has been sufficiently corroborated.” This instruction was sustained and held correct in a very able opinion by Judge Cobb sitting as special judge with Presiding Judge Davidson and myself, Judge McCord not sitting, and is conclusive on the proposition that the evidence of corroboration may be circumstantial. That matter then may be considered as settled.
There are in our Code of Criminal Procedure of 1895 two provisions, in cases of seduction, touching the matter of corroboration of the testimony of the party wronged, who, in the eyes of the law, is treated as an accomplice. Article 781, which is general in its character, is as follows: “A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.” Article 769 of the Code of Criminal Procedure, having special reference to the testimony of a woman seduced, is to this effect: “In prosecutions for seduction, under the provisions of the Penal Code, the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon the testimony of the said female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged.” I think it probable that the last-named article was intended to institute a somewhat different rule in seduction cases. This, however, may not be quite clear, and it is unnecessary to express a definite conclusion on it. Whether this construction is true or not,
Now, while there are many loose expressions in the books to the effect, in substance, that the prosecutrix must be corroborated both in respect to the act of intercourse and the promise of marriage, this is not the law, and never was the law. The statute no more requires corroboration in respect to the act of intercourse or to the promise of marriage than it does in respect to the age of prose-cutrix, or to her previous chaste character. That it is not essential that corroboration shall exist in respect to every ingredient and essential of the offense was distinctly held by Judge McCord in one of -the ablest in many of the excellent opinions rendered by him. In the case of Williams v. State, 128 S. W. 1121, in language of admirable clearness, he thus disposes of the contention by appellant that there had been no corroboration in respect to one of the essential facts required to be shown, to wit, that the prose-cutrix was under 25 years of age: “It is also contended that there is not sufficient corroboration in the case. It is admitted that the prosecutrix was corroborated on the question of promise of marriage and intercourse. She testified that she was 18 years of age. It is insisted before this court that, because there was no testimony corroborating her upon this point, therefore the conviction cannot stand. We do not agree to this contention. All crimes have in them different issues and different elements that are required to be proved in order to sustain a conviction. The statute is general that the accomplice must be corroborated by other testimony tending to connect the defendant with the commission of the offense. The statute does not say in what this corroboration shall consist. If the testimony other • than that of the accomplice should make out a complete offense, it would not be necessary to use the accomplice’s testimony. Hence the law wisely provided that the corroboration must tend to connect the defendant with the commission of the offense, and to require that every constituent element of the offense as sworn to by the accomplice must be corroborated would be requiring of the state an impossibility.” This decision is in harmony with the law everywhere except as it has been interpreted in some of the expressions of this court. Among the clearest statements of the rule on this subject I have found is contained in Am. & Eng. Ene. of Law & Prae., vol. 1, p. 583, where it is said: “The testimony of the accomplice need not be corroborated on every material fact, so that, independent of his testimony, a conviction would be authorized, as this would in effect deny to the testimony of an accomplice all value.” Among other cases cited as supporting the text are the cases of Myers v. State, 7 Tex. App. 640; Nourse v. State, 2 Tex. App. 304; Davis v. State, 2 Tex. App. 588; Hoyle v. State, 4 Tex. App. 239; Jones v. State, 4 Tex. App. 529; and Wright v. State, 47 Tex. Cr. R. 433, 84 S. W. 593.
Looking to the decisions of the courts elsewhere, we find the following admirable statement in respect to a statute almost identical with our own. In the case of State v. Lawlor, 28 Minn. 216, 9 N. W. 698, the court said: “The statute respecting the use of the testimony of an accomplice is as follows: ‘A conviction cannot be had upon the testimony of an accomplice, unless he is corroborated by such other evidence as tends to convict the defendant of the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.’ Gen. St. 1878, c. 73, § 104. We think a reasonable construction of this section does not require a case to be made out against the prisoner sufficient for his conviction before the testimony of an accomplice can be considered, for that would make it available only when its necessity did not exist; neither do the terms used require such an interpretation. The corroborating evidence must, independently of the testimony of the accomplice, tend in some degree to establish the guilt of the accused, but need not be sufficiently weighty or full, as, standing alone, to justify a conviction. We have met with no ease coming under the common law or statutory law in which full proof was required by way of corroborating evidence.” '
In the case of Myers v. State, supra, which is a murder ease where the penalty of death was inflicted, and which was affirmed by this court, Judge Winkler, who delivered the opinion, said: “The authorities are not agreed as to the amount and extent of corroboration required in order to warrant a
In the more recent case of Criner v. State, 53 Tex. Cr. R. 174, 109 S. W. 128, in which 1 wrote the opinion for the court, we said: “We have set out the testimony at this considerable length and have stated practically the testimony tending to connect appellant with the burglary. The rule is, of course, well settled that, before a conviction can be had upon the testimony of an accomplice, there must be other proof tending to connect the person charged with the commission of the offense. Just how strong, in every case, this corroborating testimony shall be, must depend to a large extent upon the facts of each particular case. We believe that, while not strong, it could not in fairness be said that there was no corroborating testimony, or that it was so weak, indefinite, or immaterial as to justify us in holding, in view of the verdict of the jury, that it was wholly lacking.”
In the case of Cohea v. State, 11 Tex. App. 622, in which Judge Hurt delivered the opinion, it is said: “As we have before held, the evidence of the other witnesses need not corroborate some particular fact testified to by the accomplice, but it must tend to establish the guilt of the defendant.”
The rule announced in the case of Myer v. State, supra, is in harmony with the decisions of this court in the case of Jackson v. State, 4 Tex. App. 293, and Hoyle v. State, 4 Tex. App. 239, to the effect that it is not essential that the corroborative evidence should corroborate the accomplice’s testimony substantially and in detail. It has likewise been held that it is not essential that the corroborative evidence should suffice of itself to establish the guilt of the accused, and in that event it is said the testimony of the accomplice would not be needed. Nourse v. State, 2 Tex. App. 304. In that case Judge Ector, speaking for the court, says: “It will be seen that, to justify a conviction on the testimony of an accomplice, there must be some evidence which, of itself and without the testimony of the accomplice, tends in some degree to connect the accused with the commission of the crime. The Supreme Court of California (in the case of People v. Melvane, 39 Cal. 614) say: ‘The corroborative evidence may be slight and entitled to but little consideration; nevertheless, the requirements of the statute are fully fulfilled if there be any corroborating evidence which of itself tends to connect the accused with the commission of the offense.’ This decision was rendered under a statute very similar to ours in regard to the corroboration necessary to be had to the testimony of an accomplice to support a conviction. Article 375 of the Code of California is as follows: ‘A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense, and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof. It is a mistaken idea to suppose that the corroborating evidence must conclusively of itself connect the defendant with the commission of the offense. If so, there would be no use for the testimony of the accomplice.”
One of the best, clearest, and most lucid statements of the rule to be found in the books is that of Judge Simkins in the case of Wright v. State, 31 Tex. Cr. R. 354, 20 S. W. 756, 37 Am. St. Rep. 822. This case, too, is particularly valuable since it was referred to with approval by Judge Cobb in his opinion in the case of Beeson v. State, supra, rendered no longer ago than the 22d day of June of the present year, as will be seen by the above quotation from the Beeson opinion. There Judge Simkins says: “As to the sufficiency of the testimony, we think the witness is amply corroborated as to the promise of marriage and the illicit intercourse. Corroborative evidence need not be direct and positive, or such evidence as is sufficient to convict, independent of that of the prosecutrix, but simply such facts or circumstances as tend to support her testimony, and shall satisfy the jury she is worthy of credit. And, when there is other testimony fairly tending to support the prosecutrix upon facts essential to constitute the offense, it is for the jury to say whether she is corroborated. State v. Timmens, 4 Minn. 325 (Gil. 241). She testified she yielded to defendant because he faithfully promised to marry her. The witnesses prove that the young lady was highly esteemed, and visited by other young gentlemen, and moved in the best social circles, with a good reputation for chastity and virtue; that he was received by heir family as a suitor, and was so persistent in his attentions that all other gentlemen were compelled to cease attendance. His letters breathe undying affection and strong jealousy, and speak of their marriage in the future as a certainty. We think the evidence is amply sufficient to sustain proof of seduction.”
However, under any rule ever announced by this court, I think a careful study of the record must carry conviction that the testimony of corroboration is sufficient. Of
In this case the evidence shows that, when the parties first became acquainted, the pros-ecutrix, who, it seems, was a woman of rather an humble station, and an orphan girl, was living with the brother of appellant. It is not denied, and indeed seems to be conceded, and was indubitably proved on the trial, that she was a woman of blameless life and unsullied reputation. The evidence shows that, at the very time the intercourse between herself and appellant was being indulged in, she was received as a welcome guest at the hearthstone and around the fireside of his father and mother. She is shown to have been the associate and companion of his sister, and was by her, under this evidence, treated as an equal. That some one accomplished her ruin is, of course, certain. As stated, the evidence shows that the prosecutrix had neither father nor mother. Except that her heart belonged to another, she was mistress of her own fortunes and her own destiny. Therefore there was no opportunity for the state to furnish testimony of either father or mother that the daughter had been sought in marriage by her suitor. The fact that she was alone in the world furnishes, too, some reason why the engagement should not be published, or the fact of the engagement communicated to her relatives. The jury knew, too, as we know, and as sensible men must here assume, that they took cognizance of the well-known fact that frequently, if not indeed usually, such engagements are kept secret, and not disclosed until the wishes of the woman and the affairs of the man make it possible to early realize the hopes of the contracting parties. From these and other facts the jury might well find the promise of marriage, and not to believe same, in view of the character of the woman, the intimate association of the parties, was to close their eyes to the experience of the ages. There is no hint or suggestion in the evidence that she had such relations with' any other person as would have made it among the possibilities for such other person to have secured her confidence, corrupted her mind, and wrought her ruin. Indeed, the testimony clearly shows that so secure was appellant in her affections and so thoroughly had he outstripped the rivals for her heart that they had dropped out of the race and left him undisturbed. The evidence clearly shows a general recognition among their acquaintances and friends of a relation more than that of merely passing acquaintances. In addition to this, as soon as the complaint was filed against appellant for seduction, he flees the country, and is gone for a year. When her condition becomes known, and in jest some reference is made to his buying a gift for his boy, he falls in with the suggestion and says yes, probably he had better buy it. There is no suggestion of disavowal of this responsibility, when, if he had been innocent of the transaction, every suggestion of self-preservation would have demanded and would certainly have induced a'disavowal. It was a situation which from an honorable man, guiltless of any wrong, would have instinctively drawn such a disavowal. In view of their long and intimate association, it is passing strange that if not guilty and not
It may be that I attach too much importance to the work and the opinions of this court and its high office. I would have it always to be the great tribunal which the Constitution ordained and provided it should be — an asylum for the oppressed whose rights have been invaded, and a safe harbor for the innocent improperly convicted, but at the same time furnishing ever and always an anchor both true and steadfast, holding securely the fundamentals of our Constitution and preserving the peace of society and the well-being of our citizenship.
I have felt so great an interest in the question that I have at this great and perhaps unnecessary length written my views in the hope that, like bread cast upon the waters, it may be returned to me after many days.
For these reasons I respectfully enter my dissent, in the hope that in some future and in some better day the views here expressed will come to be recognized as the law of this state.
Rehearing
On State’s Motion for Rehearing.
On November 9th of last year an opinion in this case was rendered by Presiding Judge DAVIDSON of this court, in which Judge McCORD concurred, reversing and remanding the case on the ground, in substance, that the verdict of the jury and judgment of the court were unsupported by the evidence, in that there was not in the evidence sufficient proof of corroboration. From that opinion, as the record shows, Judge RAMSEY dissented, filing at the time a lengthy dissenting opinion. Soon thereafter a motion for rehearing was filed on behalf of the state, which was submitted on oral argument by Hon. John A. Mobley, then Assistant Attorney General. On the 14th day of December thereafter Judge McCORD prepared an elaborate opinion on the motion for rehearing concurred in by Judge RAMSEY in which the state’s motion was granted, the judgment reversed and set aside, and the cause affirmed. This opinion was not on that day handed down out of deference and respect to Judge DAVIDSON, who had written the original opinion, and who was, as we were advised, detained at home on account of sickness. Judge DAVIDSON not agreeing to the conclusion reached by Judge McCORD, the matter remained in this condition until after .the resignation of Judge RAMSEY from the bench, and the case
“At a former day of this term of court the judgment in this case was reversed and remanded. The opinion was written by Presiding Judge DAVIDSON, in which I concurred. Judge RAMSEX dissented.
“The state has filed a motion for. rehearing on the ground that the majority opinion was in error in holding the evidence insufficient to support the conviction. The majority opinion held that the prosecutrix was not sufficiently corroborated, and that in order to convict a party of the crime of seduction it is necessary that the prosecutrix be corroborated both as to the promise of marriage and intercourse. The writer of this opinion has reached the conclusion that the majority opinion was wrong, and, having changed his mind with regard to this matter, in justice to himself feels it is due that he should give the reasons for such change.
“The crime of seduction is a statutory offense. It did not exist at common law. The master, guardian, or parent might bring a civil action for damages for loss of service by reason of his ward, servant, or child being debauched. The Legislature in 1858 passed an act making it a penal offense, in this state, for any man under the promise of marriage to seduce and debauch any female under the age of 25 years. It was also provided that the woman seduced should not be permitted to testify. After the Legislature passed an act permitting defendants in all criminal cases to testify, the Twenty-Second Legislature lifted the ban off the seduced female and declared that she should be a competent witness, but that her testimony would have to be corroborated by other testimony tending to connect the defendant with the offense charged. Before the passage of this act, we had but few prosecutions for this offense, due largely to the fact that the seduced female could not testify. The statutes defining seduction in the different jurisdictions differ somewhat. Some of them merely make it a crime to seduce and debauch an unmarried female of good repute or of previous chaste 'character, saying nothing of the means employed. Others make it a ¿rime for any man under promise of marriage to seduce and have carnal intercourse with such a female. In other jurisdictions the offense consists in the act of persuading or inducing an unmarried woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasions, or wiles which are calculated to. have and do have that effect and resulting in her ultimately submitting her person to the sexual embraces of the person accused. See Oye. vol. 35, p. 1320. In some jurisdictions the female seduced is not required to be corroborated. This corroboration in some states, like ours, requires that the evidence of the prosecutrix shall be corroborated by other evidence tending to connect defendant with the offense charged. In other states she is required to be corroborated as to the promise of marriage, and, where corroboration is required, the rule seems to be as follows: ‘The statute does not require the testimony of another witness, or direct and positive evidence, but the corroborating evidence may be supplied as well by facts and circumstances surrounding the transaction and otherwise established in the case. Nor need the corroboration be of such force as would prove the facts independently of the female’s testimony. Where there is some testimony of other witnesses or other evidence supporting testimony on material questions in the case, it is for the jury to determine whether she is sufficiently corroborated.’ See Cyc. vol. 35, p. 1363.
“The evidence in a seduction case to support a conviction is to be measured and governed by the rules of any other crime, and any rule that would require a departure from the ordinary rules of testing the sufficiency of the evidence or the amount of proof required, unless prescribed by the statute, would be out of harmony with the spirit of the criminal law. Now, the law provides in seduction, like any other crime, that any fact ‘may be established by circumstantial evidence as well as direct. It simply lays down this rule with regard to this crime which would be applicable to any other case where the law made a witness an accomplice; that is, that no conviction can be had upon the testimony of the person whom the law denominates an accomplice, unless there is other evidence tending to corroborate the witness as to the offense committed. The statute does not say in what this testimony shall consist. It uses language that practically is used in all cases where the state relies upon the testimony of an accomplice. No different rule is authorized. Therefore, when we go back to see what the courts have said with regard to testimony that tended to connect the defendant with the commission of the offense, it simply means such facts and circumstances as will tend to show the defendant committed the offense and that the accomplice’s testimony is true. It does not require that the accomplice shall be corroborated in every material particular. It does not require the court to single out this element of the offense or that element and then direct the jury that, unless the accomplice is corroborated on this issue or that issue, they will acquit. Every crime consists of different elements. Murder in the first degree consists of express malice and the killing. Now, if an accomplice should be placed upon the stand who testified both to the express malice and killing, has this or'any other court ever directed that the jury will not convict upon the testimony of the accomplice unless he had been corroborated both
“The writer of this opinion in the case of Williams v. State, 128 S. W. 1121, uses this language: ‘It is insisted before this court that, because there was no evidence corroborating her upon this point, the conviction cannot stand. We do not agree to this contention; all crimes have in them different issues and different elements that are required to be proved in order to sustain a conviction. The statute is general that the accomplice must be corroborated by other testimony, tending to connect the defendant with the commission of the offense. The statute does not say what this testimony shall consist of. If the testimony other than that of the accomplice should make out a complete offense, it would not be necessary to use the accomplice’s testimony. Hence the law wisely provides that the corroboration must tend to connect the defendant with the commission of the offense, and to require that every constituent element of the offense, as sworn to by the accomplice, must be corroborated, would be requiring of the state an impossibility.’
“In the case of Myers v. State, 7 Tex. App. 640, this language is used: ‘The authorities are not agreed as to amount and extent of corroboration required in order to warrant conviction on the testimony of an accomplice who, in the sense of the witness, is any direct participant in the crime, but with this we need have no concern, for the simple reason the statute has settled it by declaring the extent of the corroboration necessary. It is “other evidence tending to connect the defendant with the offense committed.” We do not understand that this requires that the different matters testified to by the accomplice are to be supported, each one, by other tsetimony to the same isolated facts, but that it must tend to connect the defendant with the offense committed.’ As said in Am. & Eng. Enc. of Law, vol. 1, page 583, the testimony of the accomplice need not be corroborated on every material fact. So that, independent of his testimony, a conviction would be authorized, as this would in effect deny to the testimony of an accomplice all value.
“In the case of Criner v. State, 53 Tex. Cr. R. 174 [109 S. W. 128], we find the following: ‘We have set out the testimony at this considerable length and have stated practically the testimony tending to connect appellant with the burglary. ' The rule is, of course, well settled that, before a conviction can be had upon the testimony of an accomplice, there must be other proof tending to connect the person charged with the commission of the offense. Just how strong, in every case, this corroborating testimony shall be, must depend to a large extent upon the facts of each particular ease. We believe that, while not strong, it could not in fairness be said that there was no corroborating testimony, or that it was so weak, indefinite, or immaterial as to justify us in holding, in view of the verdict of the jury, that it was wholly lacking.’
“In the case of Jackson v. State, 40 S. W. 998, in a case of incest, this court says: ‘We have examined the statement of facts carefully in order to ascertain if the testimony of the accomplice, Mattie Jackson, was corroborated by other evidence tending to connect the defendant with the commission of the offense. The evidence in this regard shows that appellant alone had access to prosecutrix and opportunity to have had carnal intercourse with her. The record abundantly shows that he had such opportunities. The testimony shows, by two witnesses, that she was enciente; and her grandmother testified that she was so far gone in pregnancy that she took her away from school. Mattie Jackson testified that she was pregnant, seven months gone, and that she had never had intercourse with any other person except the appellant, who was her brother. We think the testimony tends to connect appellant with the commission of the offense.’ 'See the same rule in the case of Bales v. State, 44 S. W. 517; Faulkner v. State [53 Tex. Cr. R. 258], 109 S. W. 199. And in fact we believe that the rule laid down in the Myers Case, supra, has, with regard to every other crime other than seduction been followed, and that this court has never in any crime other than seduction intimated as to what issues the prosecutrix had to be corroborated. There are some expressions in'the opinions of our court on the subject of seduction that have led the profession into the belief that this court requires the state to prove, and the trial court to charge the jury, that before a party can be convicted of seduction the testimony of the prosecutrix will have to be corroborated both as to the promise of marriage and intercourse, and which have led toward the laying down of the rule that the corrobora
“Let us notice some of the decisions of this court where a rule has been attempted to be laid down as to the measure of cor-roooration of the accomplice’s testimony. The first case that our attention has been called to where this court intimated that the prosecutrix had to be corroborated, both as to the promise of marriage and intercourse, will be found in the ease of Gorzell v. State, 43 Tex. Cr. R. 82 [63 S. W. 126], in which this language is used: ‘What has heretofore been said leads up to another proposition relied on by appellant, to wit, that the evidence does not sustain the verdict of the jury. In this connection, we believe appellant is correct. Prosecutrix, as stated before, testified as to the .promise of marriage. The only evidence that can be said to support her on this point is one witness, to the effect that appellant, said on one occasion that he was going to marry her, and it was further shown he was in the habit of associating with, writing to, and calling her “sweetheart.” If it be conceded that an agreement to marry existed between them, still it is not shown, outside of prosecutrix’s own testimony, that appellant had carnal intercourse with her at any time. * * * The fact that appellant had carnal intercourse with prosecutrix is a vital issue in this case, and to obtain a conviction she must be corroborated upon this point.’ Now, what do we gather from this opinion? First, that the witness must be corroborated. How? By other testimony that defendant had had carnal intercourse with prosecutrix. In the ■Spenrath Case, 48 S. W. 192, this court held that the evidence was insufficient to sustain the conviction because there was no corroborating evidence as to the promise of marriage, and reversed that case. In Woolley’s Case, 50 Tex. Cr. R. 214, 96 S. W. 27, this court held the evidence insufficient because there was no testimony corroborating the prosecutrix as to the marital contract and as to the act of intercourse. This court says, in that case: ‘It is necessary in a case of this character that the prosecutrix, who is an accomplice, be corroborated as to the marital contract and the intercourse with the alleged seducer.’ We have searched the books without avail to find where any such rule had ever been laid down by any court in any criminal case. In Howe’s Case, 51 Tex. Cr. R. 174 [102 S. W. 409], while this case was affirmed by Judge Brooks, Judge Davidson dissented, and in his dissent used this language: ‘This court has uniformly and invariably held, wherever the question has arisen, that she must be corroborated, first, as to the act of intercourse on the part of the accused, and, second, as to his promise to marry her, as a predicate for the intercourse’ — and calls attention to the case of Spenrath, supra, in support of this proposition. We have not found any case behind the Spenrath Case, supra, that had ever attempted to lay down a rule as to the quantum, amount, or value of corroboration. The only rule that has ever been established is that the corroborating evidence must be such as tends to connect the defendant with the offense charged; but here the court not only goes to the extent of saying in what she shall be corroborated, but rather leads to the conclusion that the corroborating evidence on these two issues must be of the same character of testimony as that of prosecutrix. If on the two vital issues she must be corroborated to the same extent as her own testimony would establish, then why use her at all? The rule to our mind is wrong. The decisions of this court, we think, wherever it has held that the proof of the accomplice must corroborate the prosecutrix as to the promise of marriage and intercourse, and that the court should so direct the jury in the trial of the ease, should not be followed. In the case of Wright v. State, 31 Tex. Cr. R. 354 [20 S. W. 756, 37 Am. St. Rep. 822], is laid down, we think, the correct rule. Corroborative evidence need not be direct and positive or such evidence as is sufficient to convict independent of that of the prosecu-trix, but simply such facts or circumstances as tend to support her testimony and which satisfy the jury she is worthy of credit. Or, stated in another way, if the supporting testimony tends to show that the defendant committed the offense, and shall satisfy the jury that she is worthy of credit and is telling the truth, then the law is satisfied, and this was practically so held in the Beeson Case (decided at this term and not yet officially reported [130 S. W. 1006]). In the case of People v. Gumaer, 80 Hun, 78 [30 N. Y. Supp. 17], the following is in substance held: ‘That on a trial for seduction under a promise of marriage evidence of defendant’s attention to prosecutrix in the character of a suitor is sufficient corroboration of the testimony of prosecutrix.’ In the ease of Armstrong v. People, 70 N. Y. 38, that court held that the evidence of the accomplice was corroborated when the state showed by proof of circumstances which usually attend an engagement to marry — such as exclusive attention to the female by defendant and the seeking and keeping her society in preference to that of other women. In Iowa, under a statute similar to ours, in the case of State v. Crawford, 34 Iowa, 40, it was held that corroborative testimony need not be of a character that goes directly to the commis
“We deduce from the law that the prose-cutrix is corroborated whenever there are any facts or circumstances that tend to show that' the defendant committed the offense, and that, whenever the court attempts to enlarge upon this rule by laying down a rule as to what particular issues of the case shall be corroborated, it is in error. Now, in this ease the prosecutrix testified to the intercourse and the promise of marriage; the defendant was the only man who was shown affirmatively to have kept her company within the period of nine months prior to the birth of the child with one exception, and he was with her at a time that would render it impossible for him to be the father of the child; she lived close to defendant’s brothers and mother; she was an orphan girl; defendant had been waiting on her for two years, he went with her to church, to prayer meeting, to social gatherings, public picnics, and she was the associate and companion of his sister; she lived part of the time with his family; she bore a splendid reputation; she was regarded as of a chaste and pure character; the testimony does not disclose a suspicion against her, and she was a fit associate of those, that were the dearest to him, and but one young man had ever been seen in company with her other than the defendant, and he went with her home on one occasion. Defendant had almost, we might say, the exclusive opportunity to commit this offense. After it became noised abroad that the young lady was enciente, he jokingly remarked that he ought to buy a mit for his boy. When it became known in the country, he fled, went away, and was gone a year. The officers searched for him and could not find him. The testimony excludes the idea that any one else was the author of her ruin. The testimony shows that the defendant not only believed her to be pure, but he knew it, for, did he not know it, he would not have put her under the roof with his family, nor allowed his sister to associate with her. Even when she went on a visit once six miles off, defendant’s own sister went in a buggy after her. We think these circumstances tend most strongly to corroborate the prosecutrix that the defendant was not only the author of her ruin, and that he was not only engaged to her, but that he had intercourse with her under the promise of marriage. The very fact that he was her exclusive company for two years, is a circumstance corroborating her upon the question of marriage. The very circumstances exclude the idea of any one else having the opportunity, and his close companionship and association with her shows that he was the author of her ruin. The evidence to our minds abundantly shows the guilt of the defendant, and the evidence tending to corroborate the prosecutrix is all that the law requires. Nor is the court called upon to direct the jury in what she shall be corroborated, or the amount and value of the corroboration. The defendant is guilty. The law has been satisfied.
“Let the motion for rehearing be granted, the judgment of reversal be set aside, and the case affirmed. McCord, Judge.”
We have carefully read all the opinions prepared in the case, including an elaborate opinion recently prepared by Judge DAVIDSON, in which he maintains with great force and ability the views originally entertained by him. In view of the differences between the members of the court as originally composed, we have ourselves invited argument on the state’s motion, and have, in the light of such argument and the opinions theretofore prepared, and after a careful inspection of the record, come to the conclusion that Judge MeCOKD’S opinion correctly states the facts, is a correct statement of the law", and should be as it is hereby in all things approved and affirmed.
There is no complaint of the trial court’s charge. That he properly submitted the question of the corroboration of the witness Katie Weddle is admitted. Under our system the jury is the judge of the credibility of the witnesses and the weight to be given their testimony. The jury found that the witness was corroborated, and we are not disposed to disturb their finding on a question of fact.
It is therefore ordered that the motion of the state be and the same is hereby granted, the judgment of this court heretofore reversing and remanding the cause is set aside, and the judgment of conviction is hereby affirmed.
Dissenting Opinion
(dissenting). It is urgently insisted by the Assistant Attorney General, joined by Mr. Lattimore, the district attorney of the judicial district from which this appeal comes, in a motion for rehearing filed by the state, that this court is in er
This, to our minds, when construed in the light of the statute defining seduction and the one fixing the status as to the evidence of the alleged seduced female, is not only quite remarkable, but is fully an astounding proposition. This court had nothing to do with framing the definition of the offense, or fixing the character of quantum of evidence necessary to convict. This is a legislative question as much so as is the defining of any or every other offense and the annexing of penalties. This statute only proposes to punish for the seduction of an unmarried female under the age of 25 years. It does not provide nor intimate a punishment of any female above the age of 25 years, married or unmarried, although she might be a constituent member of the family and as much entitled to the protection and safeguards thrown around the home as is a woman under 25 years of age. It does not protect the married woman, although she be under 25 years of age. Nor does it undertake to throw any safeguard around the home as such, either as to its dearest or its most important interest. Nor do we understand that by following the plain letter of this legislative enactment this court will be destroying the safeguards of homes and their most important interest, nor would we thereby undermine or sap the foundations of society. To usurp legislative authority would be far more detrimental in the direction of undermining and sapping the strength of the law and in the destruction of the safeguards of the home and their dearest interest. This law of seduction, like every other statute defining a public wrong, is for the protection of society, and not so much for the protection of the individual, and we could with as much propriety be called upon to change, enlarge, or modify the law. of murder, rape, arson, burglary, robbery, etc., so as to punish, whether or no, a person charged with one of those offenses. To do so would give to this court the legislative power which it does not and cannot, under the Constitution of this state, possess, and it would destroy every vestige of safeguard which the law and Constitution throws around a person charged with crime.
While it is our duty to protect society in the manner pointed out by law, yet our duty is equally as plain and urgent to protect one charged with crime against an unfair and illegal trial or a wrongful verdict. He is as much entitled to have his rights safeguarded and fully protected by this court, whenever called upon to do so, as it is our duty to protect every other member of society. This constitutes the certainty which is said to be the glory of' the law. The criminal laws of this state are not laws of vengeance and were not made either to assist in individual revenge or to encourage sympathy in behalf of the person injured. If the individual has been injured in person or property, he or his representatives can find remedy under laws and statutes affecting private rights and remedies. The Constitution of this state has carefully provided for keeping separate the three departments of government — executive, legislative and judicial. This is done, not only in behalf of individual liberty, but to insure the constitutional permanency of our state and form of government. Whenever the time may come when this provision of the Constitution can be disregarded, the Constitution with this wise provision will become a dead letter.
While this provision of the Constitution is made for the protection of both individual rights and the rights of the state, every article of the Bill of Rights is made for the protection of the individual against aggression by the state in the exercise of unlawful powers by any of its departments. We are not willing to give to any law a different construction from that which its context, words, subject-matter, and spirit shows to have been the legislative intention in framing it, for the purpose of enforcing the conviction of a man upon trial simply because some unfortunate victim may excite our sympathy. Pen. Code 1895, arts. 1, 3, 9; White’s Ann. Pen. Code, §§ 4, 5, 6, for collated cases. The protection of individual liberty is the duty of courts, and not until some act done by him contrary to the penal law for which he is being tried, and shown by legal evidence, can he lawfully be deprived of such liberty by the infliction of such penalty.
While every one should sympathize with an unfortunate girl who may be the victim of some one’s lust, such sympathy cannot be had at the expense of plain judicial duty to such an extent as to cause us to place a construction upon a statute, neither intended, nor provided by the lawmaking power. The statute of seduction has been construed too often by this court to warrant us in giving it a construction other than that heretofore given it. The court would certainly be, if not already there, upon dangerous grounds if a different construction as to well-settled law has to be given every time a case comes before the court to meet some
“Seduction” is defined as follows: “If any person, by promise to marry shall seduce an unmarried female under the age of twenty-five years, and shall have carnal knowledge of such female, he shall be punished by imprisonment in the penitentiary, not less than two, nor more than ten, years.” Article 967, Pen. Code. It follows from this definition that five material facts are necessary to be proved by the, state in order to secure a conviction, and the failure to prove any one of these must result in an acquittal:
First. The woman alleged to have been seduced must have been, at the time of the carnal act, unmarried. Mesa v. State, 17 Tex. App. 395. Otherwise she caiinot be the subject of seduction under a promise of marriage. Same case. See, also, Ferguson v. State, 71 Miss. 805, 15 South. 66, 42 Am. St. Rep. 492; State v. Reed, 153 Mo. 451, 55 S. W. 74; Norton v. State, 72 Miss. 128, 16 South. 264, 18 South. 916, 48 Am. St. Rep. 538.
Second. She must have been, at such time, under 25 years of age. This is as material and as absolutely important as the age of females in cases of rape, where conviction is sought in the absence of force upon a female under 15 years of age.
Third. She must have been chaste, but morally corrupted, by the acts or words of the party alleged to have seduced her to the extent that she would have a less regard for her duty as to the virtue of chastity, than she would have had, but for the blandishments and wiles resorted to by him. However, as the law presumes every woman to be chaste, the prosecution is not required to prove her chastity. The want of chastity is a defensive matter which may be shown in defense of the accusation. The very fact of the law indulging in this presumption of chastity, and the further fact that every one charged with crime is presumed innocent until the contrary is shown, the burden is placed upon the state to prove that she has been seduced — that is, morally corrupted— by the acts or words or conduct of the person accused to that extent that she would have a less regard for her duty as a chaste and virtuous woman than she would otherwise have had. Putnam v. State, 29 Tex. App. 454, 16 S. W. 97, 25 Am. St. Rep. 738; People v. Brewer, 27 Mich. 134; State v. Wenz, 41 Minn. 196, 42 N. W. 933. “The term seduction is used in the sense in which it is commonly understood.” Article 968, Pen. Code. It will be seen, therefore, that the Legislature did not attempt to give to the word “seduction” a meaning other than is given to it by common understanding, or as the statute says, as it is commonly understood, but, having used it in connection with the words “carnal knowledge” and as one of the constituents of the offense, due regard and consideration, as intended by the Legislature, must be given to it, and proof of this fact can be no more dispensed with than can the act of carnal knowledge, or the other constituent elements of the offense.
Fourth. She must have had carnal intercourse with the person accused of the offense. This must be the effect and result of his seductive influences and preceded by promise on his part to marry her, and she must yield her consent to the carnal knowledge from this promise of marriage alone and from no other cause or reason. This is a positive requirement of the law. Barnes v. State, 37 Tex. Cr. R. 320, 39 S. W. 684.
Fifth. There must be a promise of mar-ria^fe to her by the party accused, and, as before said, this must precede the act of carnal knowledge, and must not only induce the act, but be the exclusive reason of her consent to the act. Barnes v. State, supra, and eases there cited.
The proof of these five facts are necessary and absolutely essential to establish the corpus delicti; in other words, to make a complete offense, such as is defined by law. These constitute what our statute calls the “offense charged.”
While the Legislature, in its wisdom, has permitted the injured female to testify, it has restricted the extent of her testimony to the extent that no conviction can be had alone upon such testimony. “In prosecutions for seduction, under the provisions of the Penal Code, the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon the testimony of the said female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged.” This language is found in article 769, Code Cr. Proc. The effect of this statute is to require.that the female be corroborated by testimony other than her own tending, not only to identify the defendant as the guilty party, but also as to the commission of the “offense charged.” In cases of seduction one includes the other, and the testimony which goes to make the offense must necessarily, at the same time, identify the guilty party if such testimony be true. The law of accomplice as defined in article 781 of the Code of Criminal Procedure has no relation, as there understood, to the law of seduction. The term “accomplice” carries with it and implies guilt, and, because, of this fact, the law impeaches the testimony of the accomplice and prohibits a conviction upon his testimony alone. The law of seduction does not proceed upon the idea that the alleged seduced female is a parti-ceps criminis, but regards her more in the light of a victim who has been overreached, seduced, and debauched by and through deceptive wiles and promises of the seducer and one who would not have surrendered her
So much for the law.
Let us apply the facts as shown by the record. From an examination of the statement of facts we fail to find evidence tending to corroborate the witness Katie Weddle, either as to the promise of marriage, the carnal intercourse with the defendant, or the seductive acts, or words necessary to corrupt, leading up to the act of carnal intercourse. There is proof, undisputed, of carnal knowledge with some one. The child born to her is evidence of this fact. But with whom? Not with the defendant, because the quantum of evidence fixed by law to establish this fact has not been shown. The theory of the state, however, seeks by a process of exclusion and elimination to raise the question of opportunity as a circumstance tending to corroborate Katie Weddle’s testimony, and by such process exclude the idea that any person other than defendant is the father of the child. It will be difficult to find anywhere in the books a well-considered case which holds that opportunity alone is of such probative force as to afford the corroboration required by law. In every instance there will be found in the record of cases other facts, such as letters, admissions, or preparations for marriage, or facts hf like tenor going to support or in aid of opportunity. To hold opportunity alone to be sufficient would be to overthrow the presumption of chastity in the woman and that of innocence in the man. It would be to write every woman a harlot, and every man a debauchee, regardless of the chastity of the one and the absolute innocence and purity of intention of the other, in the face of the legal presumption that the woman is chaste and the man innocent. It would be to assume that the human family is so loosely constructed and morally weak that the mere appearance of a man in a woman’s presence, unseen by others, would result in carnal intercourse. This court ought not to subscribe to so monstrous a doctrine. Upon the contrary, it should cling to those sound and wise presumptions of law which write that every woman is presumed to be chaste, and every man innocent, until the contrary appears by legal and competent evidence.
Now what is claimed by the state as corroborating facts? The witness Katie Wed-dle alone testifies to the act of carnal intercourse and the promise of marriage. To corroborate her testimony as to the act of intercourse, the state relies: First, upon opportunity ; second, the declaration of the defendant to the witness Ed Elliott; third, as to the flight of the defendant. These we will consider in the order presented and mentioned. '
First. As to opportunity: Katie Weddle testified: “I lived at Will Nash’s two years. He and Bob Nash were sweethearts two years. During that time he came to see me, and was my companion, and waited on me. During that time, there were few others that went with me once or twice. These were Will Burns, Calvin Burns, Hugh Easton,, and Ezell Scott.” In addition to those mentioned, it appears from the evidence of other witnesses that other young men visited her, to wit, Ed Elliott and Jim Bevill, and probably others, once or twice. Thus we see the opportunity was not exclusively by any means with the defendant. It is true that neither of the young men were with her as often as was the defendant, but this is immaterial. The opportunity was presented to them and each of them. There is one very cogent fact presented by Katie Weddle’s testimony. The defendant was her companion for two years, and. during the whole of that time, though the opportunity was frequently presented, he made no proposition of carnal intercourse to her until the time spoken of by her in her testimony, yet, according to her testimony, “he did not seem to be very timid to me at all.” Upon several different times and occasions prior to the night of the act of carnal intercourse as testified by her, he had hugged her, and she had hugged him several times, and upon three different times before any offer of marriage she had sat in his lap. These facts, together with the opportunity of others, taken in connection with the testimony of all the witnesses, both for the state and the defendant, as to the good character of defendant both for honorable deportment and gentlemanly conduct, .is not to be considered as a corroborative circumstance. Another fact may here be considered as shown by the testimony of the witness Katie Weddle. For about two months prior to the night that she states the act of intercourse occurred, there had been an estrangement between her and defendant. They had ceased to be sweethearts, and their attendance upon the social function on that particular night seems to have been the first time they had been together during this period of estrangement; and it is further to be noted, under the statement of facts, that there is no evidence of any offer upon his
The declaration of the defendant to Ed Elliott: Ed Elliott says: “I saw the defendant in town here one day before the child was born, and me and him was talking about a little baseball mit and shoulder, and something was said about he ought to get that for his boy. Something like that was said. I don’t remember exactly how it was, but there was something to that amount.” And upon cross-examination he said: “I went with her (Katie Weddle) one time, but that was after Bob quit going with her. I went with her to a negro concert. I don’t know whether or not Bob quit going with her about May, 1906, but I know that he was not going with her when I went with her. It was some time in the spring or summer after the negro school was out, and I suppose it was in 1906, I don’t remember. If he was ever with her at all after I went with her, I- don’t remember seeing him. That, was in the spring before the child was born. I was joshing him about the baby, and there was something said about the mit; I think 1 brought it up myself. I might have been the one that suggested that he buy one for his boy, I won’t be certain. We was talking, and he said, ‘yes, he ought to buy it.’ ” The child was born on the 15th day of March, 1907. To give any weight to this testimony at all, we must first assume that the “mantle of Elijah” had fallen on this witness. What boy was he talking about? At that time Katie Weddle had not given birth to any child. Its sex was not and could not have been known. There is nothing in this conversation which in any way, without a wonderful stretch of imagination, connects the defendant with the subsequently born child of Katie Weddle. Her name was not mentioned. She was not in sight, so far as the testimony shows or tends to show, nor does it appear from anything in the record that either Elliott or any one else knew that the defendant was charged with the alleged offense until after this child had been born. The complaint had evidently not been lodged against the defendant, because at that time he was, according to the testimony of this witness, upon the streets of the county seat; while the sheriff testified that he made search for the defendant “on this charge of seduction” and could not find him. It is true, Elliott says, “I remember in the summer of 1906, when the complaint was made against him for seduction”; but this was evidently a mistake on his part, as no complaint was made at that time, as we gather from the record. This testimony can have no bearing whatever, we think, on this case, and cannot be considered as a confession of the defendant’s guilt. In fact, it ought not to have been admitted.
Third. As to the flight of the defendant: The evidence of flight is not sufficient. Independently of Katie Weddle’s testimony, there is nothing in the record suggesting the idea that the defendant knew anything of her seduction, or that any offense had been committed or that officers were seeking to arrest him. Granville Matthews, the constable, says: “I went out to arrest Bob Nash. I did not find him. I first went to Will Nash’s, and asked about him, and he said he was over at the old man’s, and I went over to his father’s and asked him where he was at, and the information that I got was that he was over in some woods, and I went over there and hunted the woods out for him and could not find him. I hunted for him about two hours, I guess, in the big woods in east of Mr. Nash’s; but I could not find him. I kept a lookout for him until he was finally surrendered, which must have'been probably a year.” The sheriff, Jim Frazier, says: “As such officer I made search for Bob Nash, the defendant in this case. I was not able to find him. I kept up the search about a month or three weeks and was not able to catch him.” The evidence of flight is very meager and scarcely rises to the dignity of a circumstance. How or where this search was made does not appear. True, it appears that for two hours of the time one of the officers was in defendant’s neighborhood, and searched through the woods, and, upon inquiry as to the whereabouts of the defendant, was informed that he was in the neighborhood. Charley Cawley says: “Bob left that community about the time this complaint was sworn out. It was probably a month or so before he left since I had seen him with her. It might have been three months. After the complaint was filed, he left the country, and it was something over a year after that before I saw him again. I know that he went off hunting. And when he came back, the trouble was on.”
Neither flight nor confession are admissible to prove the corpus delicti. This, or in other words the offense, must be first shown, and not until then is evidence of such facts admissible. When the corpus delicti has been established, however, in the manner required by law, then the testimony of confession and flight become admissible for the purpose of showing the defendant’s connection with the offense charged to have been committed. Here, however, the state is endeavoring to prove its whole case by such circumstances. We must not be understood as holding that circumstantial evidence may
In some jurisdictions, every material fact must be corroborated, while, in others, it is sufficient if the corroboration extends to a promise of marriage, and to the intercourse. In every jurisdiction, however, it is held there must be corroboration to the promise of marriage. As is said in Rice v. Com., 100. Pa. 28: “In order to warrant a conviction of seduction under the promise of marriage, there must be evidence to corroborate the testimony of the seduced female that there was a promise to marry. The statute defining the'offense is explicit, and the rule is not changed by the fact that a defendant can now testify in his own behalf.” And “mere proof that the defendant had opportunity to employ seductive arts does not constitute evidence corroborative of the prosecuting witness.” See State v. Smith, 54 Iowa, 743, 7 N. W. 402; State v. Araah, 55 Iowa, 258, 7 N. W. 601; State v. Painter, 50 Iowa, 317; State v. Hill, 91 Mo. 423, 4 S. W. 121. “On the trial of an indictment for seduction under a promise of marriage, the promise cannot be'proved by evidence of attentions, or the expressions of contrition for the seduction, and by a promise made after the seduction to marry the girl after a time.” Cole v. State, 40 Tex. 147; Rice v. Com., 102 Pa. 408; People v. Clark, 33 Mich. 112; People v. Millspaugh, 11 Mich. 278.
The testimony of the witness Katie Wed-dle does not, to our minds, establish the fact that it was exclusively the promise of marriage and her reliance thereupon which caused her to yield to the acts of intercourse. See Simmons v. State, 54 Tex. Cr. R. 619, 114 S. W. 841; Putnam v. State, 29 Tex. App. 454, 16 S. W. 97, 25 Am. St. Rep. 738. She, the defendant, and several others had just returned in a wagon from an ice cream supper. She alone testifies to these facts. Outside of her evidence there is not a fact tending to show she ever even met appellant at the garden at night. This is where promise of marriage was made, if ever made. When they arrived where she was staying, she and the defendant got out of the wagon. This was between 10 and 11 o’clock at night. She was 22 years of age in December, 1909, and he was 22 September 14, 1909. She says: “When we got to the door, he said he wanted to talk with me and asked me if I would go with him out there (the garden). He said he would wait for me, and I went in the house, and put up my fan and handkerchief and some other things, and went in and turned down the cover on my bed. The reason I went in the house, I knew they was all awake, and I went in there and slipped out when I came out. I didn’t want them to know I left the room at all. I pulled off my shoes and went out in my stocking feet. I did not change any of my clothes, and did not take off any of my clothes, except my shoes. "When I came out, he was out by the side of the garden waiting for me, and asked me to sit down, and I sat down, and we talked on a while, and he asked me to submit to him, and he promised to marry me. I don’t know that I can remember every word that he said to me, but he asked me if I still loved him, and I told him yes (which I did), and he asked me to submit to, him, and I would not do it, and he said, ‘Well, you know I would not harm a hair on your head.’ 1-Ie says, ‘You know I would not betray you.’ 1-Ie says, ‘You know I would not harm you for anything on earth.’ He just asked me if I would let him have it, and I didn’t want to at first, and he kept insisting, and I finally agreed. I asked him what would he do. I said, ‘People will be finding this out.’ He says, ‘No, they won’t know anything about it.’ He says, ‘We mean to get married, and we will get married before anybody knows anything about it.’ I-Ie says, ‘There will be no harm done, and nobody knows it.’ I says, ‘Well, maybe not.’ I did not have any feeling or desire for sexual intercourse right at the time I consented, and did not have any desire for it before I consented. IIe had his arms around me while we were sitting down. I put my arms around him, and he put his arms around me. We sat there in that position but a very few minutes.” Then again, “I had no desire whatever to have sexual in
As was said in State v. Reeves, 97 Mo. 668, 10 S. W. 841, 10 Am. St. Rep. 841: “No one can, with any degree of plausibility, contend that a virtuous female can be seduced without any of those arts, wiles, and blandishments so necessary to win tbe hearts of tbe weaker sex. To say that such a one was seduced by simply a blunt offer of wedlock in future, in exchange for sexual favors in prse-senti, is an announcement that smacks too much of a bargain and barter, and not •enough of betrayal. This is hire or salary, not seduction.”
X can see no sufficient testimony in this ■record to support this conviction. Wherefore tbe motion for rehearing ought to be overruled. I therefore enter my dissent.
Dissenting Opinion
dissents, deeming it unnecessary to further discuss the facts. The charge is not discussed. I therefore deem it only necessary to say under Simmons v. State, 54 Tex. Cr. R. 619, 114 S. W. 841, it is wrong.
Rehearing
On Appellant’s Motion for Rehearing.
Soon after I came upon tbe bench, and some time before Judge HARPER delivered tbe opinion in this case •on January 25, 1911, at bis instance, I carefully studied the case, read tbe whole record and tbe various opinions that bad been ■delivered therein. I then fully agreed with him in tbe opinion rendered by him. Since ■then, at tbe instance of tbe appellant, we ‘have beard an able and forcible oral argument and written arguments on tbe appellant’s motion for rehearing by bis attorneys herein. Again, at Judge HARPER’S instance, I have carefully studied tbe case and have been more fully convinced than ever ■that this case has been properly affirmed, and that the opinions herein, rendered by Judges HARPER and RAMSEY is tbe law and is applicable to this case, and that tbe case should in all tbings.be affirmed.
There bad been so much said and written in this case on the question of tbe corroboration of the injured party, Miss Weddle, and all on that question alone, that we were inadvertently led to say.in Judge HARPER’S opinion that there was no complaint of tbe trial court’s charge. In that, however, we were mistaken. Our attention has been called thereto, and all these various matters forcibly and ably presented by appellant’s counsel. We have therefore carefully gone over all of them. We deem it unnecessary to state them or to particularly discuss them. Suffice it to say that it is our opinion that there is no reversible error presented by any of those questions.
Being thoroughly convinced and fully satisfied that the judgment of conviction in this case is correct, and that the injured party was fully and satisfactorily corroborated as required by law, it is our opinion that tbe appellant’s motion for rehearing should in all things be overruled, and it is hereby so ordered.