20 S.W. 756 | Tex. Crim. App. | 1892
Appellant was convicted of the offense of seduction, and his punishment assessed at four years in the penitentiary, from which he appeals.
There are only two questions that need be considered. 1. The defendant, when the evidence of the State was introduced, and before the court had charged the jury, and while the prosecutrix was on the stand, in the presence of the court and jury, in open court, holding a marriage license duly issued, stated to said prosecutrix, that in good faith he then and there offered to marry her, and if she would accept him, his honor then and there could marry them; that he held the marriage license in his hand authorizing the marriage rite. To this offer, before Miss Nisbitt could answer, the district attorney objected, and asked leave to contest the good faith of the offer.
Defendant objected to the contest, on the ground that the only way to test his good faith was for Miss Nisbitt to have accepted his offer of marriage and for the court to agree to perform the ceremony. The court overruled this objection, and allowed the district attorney to make the contest, who proved by several witnesses that defendant had said he would not marry Miss Nisbitt unless compelled to, and he would not live with her. Thereupon the defendant was duly sworn, and under oath and with the license in his hand, again said to Miss Nisbitt, that if she would marry him and live with him, that he would not only marry her, but would live with her, and to the best of his ability discharge all his marital duties towards her. Thereupon Miss Nesbitt said to defendant, "I most positively decline to marry you or to live with you. I would not marry any man who treated a woman as you have done me." Thereupon counsel moved to dismiss the prosecution and instruct the jury to acquit the defendant. The court declined, upon the ground that under the evidence he did not think that defendant intended in good faith to marry Miss Nisbitt and live with her. This testimony is fully set forth in a bill of exceptions. It is signed by the court, with the explanation that when the offer was made the prosecuting witness, Miss Nisbitt, was silent; that it was then the district attorney proposed to test the question of good faith. That upon the introduction of the testimony the court said, "the parties may marry if they wish to do so," and Miss Nisbitt refused to consent, and the court ordered the trial to proceed.
Article 816, Penal Code, declares that if the parties marry each other at any time before the conviction of defendant, or if the defendant in good faith offers to marry the female so seduced, no prosecution shall take *358 place, or if begun it shall be dismissed. The learned judge appears to have construed "the offer in good faith," spoken of in the statute, to require something more than a bare submission to the marriage rites; that in the "offer" of defendant must be included the promise to live with, protect, and support — in short, do a husband's part by the prosecutrix. Such, however, is not the statute. The law goes no further than the marriage vow; then it must leave the parties. When he marries her, in the language of olden times, "he makes an honest woman of her." he can marry no other woman during her life without a divorce. Mr. Wharton lays down the rule correctly when he says, the marriage of the parties subsequent to the seduction, though followed by the desertion of the husband, is a defense to an indictment for seduction, and so is a bona fide offer of marriage. 2 Whart. Cirm. Law, sec. 1760.
If the offer is made before prosecution begun, the grand jury should find no bill. After the prosecution is begun and up to the moment of conviction, defendant may make his offer. As presented in the record, the defendant unquestionably made an offer of marriage to the prosecutrix, and it was sincerely made. In the presence of the whole court, judge, jury, and counsel, and the spectators, he offers to marry the prosecutrix then and there, and the presiding judge to perform the ceremony, and produces the license authorizing the marriage. Of his good faith there can be no earthly doubt. The penitentiary towering above him was the strongest guaranty of the sincerity of his offer. And the court erred in permitting the district attorney to question the bona fides of an offer that was patent to all. The only test that could have been made of his good faith would have been for the court to have proceeded to marry the parties as requested by the defendant, and if the prosecutrix declined to marry him, who was then and there willing to proceed, the court should have ordered the dismissal of the cause.
But again, after the district attorney was erroneously allowed to call in witnesses to prove the defendant's declarations that "he would not live a day with the prosecutrix; that it would break his mother's heart for him to marry her," the defendant caused himself to be duly sworn, and under the sanction of an oath again made his offer of marriage, promising to live with her, and act as a true husband. But the prosecutrix peremptorily declined his offer. While it is true, the oath could not have subjected defendant to the pains and penalties of perjury had he refused after marriage to live with her, still it was a strong and touching proof of the good faith and truth of defendant's offer. The court, on the refusal of prosecutrix, ordered the trial to proceed. The court again erred. The court should have warned her that defendant had done all that the law required, and her refusal of his offer would release him from all criminal liability, and, on her persistent refusal, should have dismissed the prosecution. *359
2. 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. The State v. Timmens,
Reversed and remanded.
Judges all present and concurring.