189 S.W. 948 | Tex. Crim. App. | 1916
Lead Opinion
Appellant was convicted of seduction and his punishment assessed at three years confinement in the State penitentiary.
The first bill of exceptions relates to the action of the court in overruling his application for a continuance. Appellant was indicted at the September term, 1915, of the District Court of McCulloch County, while this trial was had at the February term of said court in 1916. When the case was called for trial on February 23 appellant moved to continue the case on account of his failure to secure the attendance of Messrs. Pinkney King and H. E. Bathburn. Appellant states he expects to prove by King that frequently during the years 1914 and 1915 he had carnal knowledge of the prosecutrix, Eda Bell Castleman, and by Bathburn that he had intercourse with the prosecutrix the same time from August, 1914, to August, 1915, that being the time Bathburn resided in McCulloch County. The materiality of such testimony readily appears, if they would so testify, as this is a case of seduction, and appellant is alleged to have seduced the prosecutrix in May, 1915. When this trial was had the girl and her mother both testify that she
As to the witness Bathburn, it shows that he had left McCulloch 'County August 4, 1915, prior to the institution of any prosecution of appellant, and that appellant was aware of that fact, and yet had no process, issued for the witness until January 6, 1916, which process had been returned, witness not found. On the hearing of this motion for new trial evidence was heard, and it is made to appear that appellant did not know where Bathburn was then located, and it is not shown •what efforts he had made to locate the witness. There is no showing made that the witness had stated or admitted to anyone that he had •ever had intercourse with the girl, or that he had been associated with her. In fact, the witness called by appellant, W. PI. 'Goodner, testified to intimate association with Bathburn, and about trouble he had about another girl and her father getting after him with a knife, but said Eda Bell Castleman was not that girl. “That Bathburn never did say anything to me about having intercourse with Eda Bell Castleman (the prosecutrix) or being with her, or anything that would lead me to
When the State closed its testimony appellant moved the court to instruct a verdict of not guilty, on the ground that the prosecutrix had been insufficiently corroborated to sustain a conviction. When the court overruled this application, appellant proceeded to introduce his testimony, and the State its testimony in rebuttal. In passing on this question we do not consider whether or not the evidence, at the time the motion was acted on, was sufficient to sustain a conviction, but it becomes our duty to consider the testimony as a whole adduced on the entire case. Had the defendant declined to introduce testimony, and rested on his motion, then we would pass on whether or not the testimony at that time would sustain a conviction, for that would be all the testimony before us. But the appellant and his witnesses materially aided the State’s case as made by the direct testimony. And as we are of the opinion the testimony as a whole will sustain the verdict, the court did not err in refusing to give peremptory instructions.
The exceptions filed to -the court’s charge, and a special charge requested by appellant, all present the issue that there was error in the court not specifically instructing the jury that the prosecutrix must be corroborated both as to an act of intercourse and the promise of marriage. Appellant himself' testifies to the first act of intercourse at the time and place fixed by the girl. So there can he no question as to corroboration, on that issue. The fact that she was only sixteen years of age (and under twenty-five) was amply corroborated by her mother, but on the question of promise of marriage there is no direct and positive corroboration of the prosecutrix. If corroborated as to this, it is from circumstances alone, such as he had frequently visited her at her mother’s1 home, and had called to see her when she was staying at Mr. Mann’s, prior to the time they, in company with others, went to the
“If from the evidence you believe that defendant had carnal intercourse with Eda Bell Castleman, but believe that at the time of the first act of intercourse she was not a chaste woman, or if you have a reasonable doubt of that fact, you will acquit the defendant even though you may believe such act of intercourse was accompanied by means of a promise of marriage.
“If from the evidence you believe that defendant had carnal intercourse with Eda Bell Castleman, and if from the evidence you believe that she was a chaste woman at the time of the first act of intercourse between she and defendant, but believe that she yielded to same to satisfy her own amorous passion, you will acquit defendant.
“If from the evidence you believe that defendant had carnal intercourse with Eda Bell Castleman, and if from the evidence you believe that at the time of the first act of intercourse, by and between them, said Eda Bell Castleman was a chaste female, but have a reasonable doubt as to whether or not defendant ■ promised to ■ marry her, the said Eda Bell Castleman, you will acquit him.”
It is thus seen that the court submitted defensively for appellant every issue that the testimony raised in his behalf, and the only question left is, should the court have specifically instructed the jury as requested by appellant, that unless the jury found that' the prosecuting Avitness, Eda Bell Castleman, “was corroborated both as to the act of intercourse and promise of marriage” to acquit appellant. We have some decisions so holding, but they were rendered prior to the rendition of the opinions in Williams v. State, 59 Texas Crim. Rep., 347; Howe v. State, 51 Texas Crim. Rep., 174; Nash v. State, 61 Texas Crim. Rep., 259. In the case of Campbell v. State, 57 Texas Crim. Rep., 301 (a seduction case), this court laid down a form of charge on accomplice testimony which was almost literally followed in this case, the only difference being that the court in this case required the jury to find that the corroborating testimony “connected” the defendant with the commission of the offense, instead of only requiring such testimony to “tend to connect” the appellant with the commission of the offense. All the above decisions were rendered prior to the writer’s accession to the bench, and he followed them in the case of Murphy v. State, 143 S. W. Rep., 616, and such rule has prevailed since the rendition of the above decisions. While there is some conflict in the decisions of other States, as well as our own, the weight of authority seems to approve the rule announced in the Williams case, supra, under statutes worded as is the one in our code. While the charge as thus drawn is
The judgment is affirmed.
Affirmed.
Rehearing
ON REHEARING.
October 4, 1916.
Appellant in his motion for rehearing in this cause assigns but three ground's, the first being that the evidence is insufficient to convict, in that he contends there is no corroboration of the girl’s testimony as to the promise of marriage. He seriously contends the following sentence in the original opinion is erroneous: “If corroborated as to this, it is from circumstances alone, such as he had frequently visited her at her mother’s home, and had called to see her when she was staying at Mr. Mann’s, prior to the time they, in company with others, went to the negro meeting.” Appellant says: “If the State had shown such a state of facts as this, then corroboration would be shown, but we insist the court erred in such finding as to the facts.” Appellant then contends all these visits were after the first act of intercourse. Appellant’s counsel must not have read the record we have before us. By this record alone we must be governed. The first act of intercourse is shown both by the testimony of the girl and that of appellant to have occurred on the 3d day of May, 1915, the night appellant and this girl went to the church in company with his mother and others. The sister of the girl testified: “During the fall of 1914 and the spring of 1915 he (appellant) visited at our house. He would come over once a week and sometimes twice a week. He would average coming about two or three times a week. He directed his attention to Eda Bell (the alleged seduced girl) and his conversations were with her.”
To the same effect is the testimony of Mrs. Castleman, and Mr. Mann testified that while Eda Bell stayed at his home appellant came to see the girl and no other man visited her. This testimony evidences that appellant called on the girl in 1914 and the spring of 1915, while the girl was at home and at Mr. Mann’s, and the act of intercourse did not take place until in May, 1915, as testified to by both of them. Under such state of facts appellant says that under the record in this case he would admit corroboration, and such is the record we have before us, approved as a statement of the evidence introduced on the trial.
His second contention is that as he demurred to the evidence when the State rested, we should pass on the sufficiency of the evidence at that time to sustain a conviction and not take the record as a whole. Such is not the law, but we must consider all the evidence adduced on the trial in passing on that issue on appeal.
The motion for rehearing is overruled.
Overruled.