BBOOKB, Judge.
Appellant was convicted of seduction and his punishment assessed at seven years confinement in the State penitentiary.
Bill of exceptions Ho. 1 complains that while the defendant was examining the jurors upon their voir dire, the defendant’s counsel asked each of the jurors the following question: “How, if you should be selected as a juror in this case, and the proof should show that the defendant, Marvin Faulkner, did have carnal intercourse with the prose-, cutrix (Florence Bodden), but that it was not under the promise of marriage, then would that fact alone, prejudice you against the defendant’s testimony and against his case; and would that fact alone influence your verdict against the defendant?” The State’s counsel objected to the question because same was seeking to forestall the verdict of the jury in said cause. The bill is approved with this explanation: “The question propounded to the jurors, and objection above stated are not correct. Appellant’s counsel asked the jurors the following question: ‘Mr. Campbell, if the proof should show in this ease, that the defendant did have carnal intercourse with this girl, aqd she did give birth to a child after that, would that influence your verdict. Then I ask you this question: ‘I said to you, the law does not make it an offense for a boy to have carnal intercourse with a girl, so that she is over the age of
sixteen. How then, would you in this case, hesitate in returning a verdict of not guilty against the defendant, if the testimony showed that this act of carnal intercourse was willingly entered into between the prosecutrix and the defendant ?’ ” State’s counsel objected to that question because it is not a proper question. The question asked is very much involved. It seems that the juror had answered that if the proof should show in this case that the defendant did have carnal intercourse with this girl and she did give birth to a child, afterwards, that said facts would not influence him in finding a verdict. Then he asked the juror if he merely had intercourse with her willingly would he hesitate in returhing a verdict of not guilty against the defendant. If the first question was proper the latter was too, for first answer necessarily includes a negative answer to the last question. So we see no error in the ruling of the court.
Bill Ho. 2 shows that while prosecutrix, Florence Rodden, was upon the stand testifying in said cause, the State’s counsel asked the witness the following question: “In his actions towards you, state to the jury whether or not he appeared affectionate or loving, kind and true, as a lover should?” The testimony is admissible.
Bill Ho. 3 shows that the State’s counsel asked the prosecutrix the following questions: “Q. State to the jury whether or not you did believe at that time that you were going to marry and become man and wife in the spring? A. I did. Q. At that time Miss Rodden, had the date of your marriage been definitely fixed between you? A. Ho, sir. Q. Later on was the time set? A. Yes. Q. How many times did you and he set a time to get married? A. I do not know just how many times. . Several times, though. Q. How state to the jury whether these times were fixed according to his suggestions or according to your suggestions.”
Thereupon appellant objected to any testimony as to a promise of marriage between the appellant and the prosecutrix, or as to the fixing of the time of marriage, because irrelevant and immaterial, and calculated to prejudice the rights of the appellant. These questions were entirely germane to this prosecution and legitimate.
Bill Ho. 4 shows that while the prosecutrix was being examined, the State’s counsel asked the following questions: “Q. How old was your baby? A. He was three weeks old. Q. What was your physical condition at that time?” Appellant objected because same was irrelevant and immaterial and calculated to prejudice the rights of the appellant. The Avitness answered: “I was not very strong. I was not able to do any work.” The above bill is approved with this explanation: “The above testimony was brought out by counsel for the State on redirect examination, after defendant, on cross-examination of said witness, had asked her the follovring questions and received the following answers:
“ 'Q. Your father drove you away from home when your baby was two weeks old? A. It was three weeks old. Q. It was your oavu father, was it not? A. Yes. Q. He carried you to Bowie, did he not? A. Yes.
Q. He left you in the depot at Bowie, did he not? A. Yes. Q. He left you. in the depot at Bowie with that three weeks old baby without any one to accompany you? A. No, sir. He did not. Q. Who was with you? A. My uncle. Q. Where is the uncle? A. He is at Ire-dell. Q. He has been here each time before? A. He was here one time. Q. Then your uncle came over to your home when your father put you out and he came back to Bowie with you? A. Yes. Q. In other words, your father carried you and your uncle to Bowie away from your home? A. Yes. Q. You went with your uncle to his home? A. No, sir, I went to Fort Worth. Q. Where did he leave you there ? A. He got me a place to board for a month. Q. After that month your father sent for you? A. No, sir, I got a place to work there in a family. Q. How long did you stay in Fort Worth? A. Nine months.’ ”
We do not think there was any harm done appellant, to say the least of it, by the introduction of this testimony, yet we fail to see the force or the materiality thereof. It was not permissible to prove that her father drove her away from home on account of her disgrace and shame, if he was base enough to do so, and therefore it was immaterial what her physical condition, but we can readily see that this testimony might be admissible on one theory suggested by the evidence in this case. After the birth of the prosecutrix’ child, she wrote a letter, “To whom it may concern,” and left same in her home, which letter was found and thoroughly identified as having been written by prosecutrix—in fact she confesses that she wrote it—in which she makes some statements at variance with her testimony on the trial of the case. Therefore, it would be material to show her physical condition at the time of writing that letter.
Bill No. 5 shows that the State’s counsel asked the prosecutrix the following questions: “Q. Where did you board at Fort Worth? A. At Mrs. ¡Reynolds’. Q. After that time, when you got able to work, did you obtain employment in Fort Worth or not ?” Appellant’s counsel objected to same and the court overruled said objection and permitted the witness to answer. This bill is approved with the same qualification as set forth in Bill No. 4. Certainly this qualification disposes of this bill.
Appellant objected, to that paragraph of the court’s charge wherein he told the jury that “seduction means an enticement of a woman on the part of a man to surrender her chastity by means of some art, influence, promise or deception calculated to accomplish that object and to include the yielding of her person to him as much as if it was expressly stated.” Appellant insists that said definition is erroneous, since the same makes a deception, influence, art or promise sufficient to constitute the offense regardless of the character of the deception or promise, and because under the laws of Texas, the offense of seduction consists
of
a woman surrendering her virtue by reason of a promise of marriage. The charge is correct.
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BBOOKB, Judge.
Appellant was convicted of seduction and his punishment assessed at seven years confinement in the State penitentiary.
Bill of exceptions Ho. 1 complains that while the defendant was examining the jurors upon their voir dire, the defendant’s counsel asked each of the jurors the following question: “How, if you should be selected as a juror in this case, and the proof should show that the defendant, Marvin Faulkner, did have carnal intercourse with the prose-, cutrix (Florence Bodden), but that it was not under the promise of marriage, then would that fact alone, prejudice you against the defendant’s testimony and against his case; and would that fact alone influence your verdict against the defendant?” The State’s counsel objected to the question because same was seeking to forestall the verdict of the jury in said cause. The bill is approved with this explanation: “The question propounded to the jurors, and objection above stated are not correct. Appellant’s counsel asked the jurors the following question: ‘Mr. Campbell, if the proof should show in this ease, that the defendant did have carnal intercourse with this girl, aqd she did give birth to a child after that, would that influence your verdict. Then I ask you this question: ‘I said to you, the law does not make it an offense for a boy to have carnal intercourse with a girl, so that she is over the age of
sixteen. How then, would you in this case, hesitate in returning a verdict of not guilty against the defendant, if the testimony showed that this act of carnal intercourse was willingly entered into between the prosecutrix and the defendant ?’ ” State’s counsel objected to that question because it is not a proper question. The question asked is very much involved. It seems that the juror had answered that if the proof should show in this case that the defendant did have carnal intercourse with this girl and she did give birth to a child, afterwards, that said facts would not influence him in finding a verdict. Then he asked the juror if he merely had intercourse with her willingly would he hesitate in returhing a verdict of not guilty against the defendant. If the first question was proper the latter was too, for first answer necessarily includes a negative answer to the last question. So we see no error in the ruling of the court.
Bill Ho. 2 shows that while prosecutrix, Florence Rodden, was upon the stand testifying in said cause, the State’s counsel asked the witness the following question: “In his actions towards you, state to the jury whether or not he appeared affectionate or loving, kind and true, as a lover should?” The testimony is admissible.
Bill Ho. 3 shows that the State’s counsel asked the prosecutrix the following questions: “Q. State to the jury whether or not you did believe at that time that you were going to marry and become man and wife in the spring? A. I did. Q. At that time Miss Rodden, had the date of your marriage been definitely fixed between you? A. Ho, sir. Q. Later on was the time set? A. Yes. Q. How many times did you and he set a time to get married? A. I do not know just how many times. . Several times, though. Q. How state to the jury whether these times were fixed according to his suggestions or according to your suggestions.”
Thereupon appellant objected to any testimony as to a promise of marriage between the appellant and the prosecutrix, or as to the fixing of the time of marriage, because irrelevant and immaterial, and calculated to prejudice the rights of the appellant. These questions were entirely germane to this prosecution and legitimate.
Bill Ho. 4 shows that while the prosecutrix was being examined, the State’s counsel asked the following questions: “Q. How old was your baby? A. He was three weeks old. Q. What was your physical condition at that time?” Appellant objected because same was irrelevant and immaterial and calculated to prejudice the rights of the appellant. The Avitness answered: “I was not very strong. I was not able to do any work.” The above bill is approved with this explanation: “The above testimony was brought out by counsel for the State on redirect examination, after defendant, on cross-examination of said witness, had asked her the follovring questions and received the following answers:
“ 'Q. Your father drove you away from home when your baby was two weeks old? A. It was three weeks old. Q. It was your oavu father, was it not? A. Yes. Q. He carried you to Bowie, did he not? A. Yes.
Q. He left you in the depot at Bowie, did he not? A. Yes. Q. He left you. in the depot at Bowie with that three weeks old baby without any one to accompany you? A. No, sir. He did not. Q. Who was with you? A. My uncle. Q. Where is the uncle? A. He is at Ire-dell. Q. He has been here each time before? A. He was here one time. Q. Then your uncle came over to your home when your father put you out and he came back to Bowie with you? A. Yes. Q. In other words, your father carried you and your uncle to Bowie away from your home? A. Yes. Q. You went with your uncle to his home? A. No, sir, I went to Fort Worth. Q. Where did he leave you there ? A. He got me a place to board for a month. Q. After that month your father sent for you? A. No, sir, I got a place to work there in a family. Q. How long did you stay in Fort Worth? A. Nine months.’ ”
We do not think there was any harm done appellant, to say the least of it, by the introduction of this testimony, yet we fail to see the force or the materiality thereof. It was not permissible to prove that her father drove her away from home on account of her disgrace and shame, if he was base enough to do so, and therefore it was immaterial what her physical condition, but we can readily see that this testimony might be admissible on one theory suggested by the evidence in this case. After the birth of the prosecutrix’ child, she wrote a letter, “To whom it may concern,” and left same in her home, which letter was found and thoroughly identified as having been written by prosecutrix—in fact she confesses that she wrote it—in which she makes some statements at variance with her testimony on the trial of the case. Therefore, it would be material to show her physical condition at the time of writing that letter.
Bill No. 5 shows that the State’s counsel asked the prosecutrix the following questions: “Q. Where did you board at Fort Worth? A. At Mrs. ¡Reynolds’. Q. After that time, when you got able to work, did you obtain employment in Fort Worth or not ?” Appellant’s counsel objected to same and the court overruled said objection and permitted the witness to answer. This bill is approved with the same qualification as set forth in Bill No. 4. Certainly this qualification disposes of this bill.
Appellant objected, to that paragraph of the court’s charge wherein he told the jury that “seduction means an enticement of a woman on the part of a man to surrender her chastity by means of some art, influence, promise or deception calculated to accomplish that object and to include the yielding of her person to him as much as if it was expressly stated.” Appellant insists that said definition is erroneous, since the same makes a deception, influence, art or promise sufficient to constitute the offense regardless of the character of the deception or promise, and because under the laws of Texas, the offense of seduction consists
of
a woman surrendering her virtue by reason of a promise of marriage. The charge is correct.
We have carefully read the various criticisms of appellant on the charge of the court in this case and desire to say, that the same is a proper and an entirely correct presentation of the law.
The only question we deem necessary to consider at any length is the sufficiency of the evidence. Prosecutrix and appellant became engaged to marry in the month of October, 1903, which engagement continued until the following August. At that time appellant and prosecutrix had a misunderstanding and the engagement was broken off. But the same was admissible in evidence, and the court did not have to limit its effect in his charge to the jury. ■ Appellant did not visit prosecutrix for about six weeks. The day after the engagement was broken, prosecutrix wrote appellant a letter that they could be friends, if not lovers, and after receipt of said letter appellant waited about six weeks and renewed his attentions to prosecutrix. Appellant requested presocutrix to let him come back and be friends. “He said he could not marry me. I told him I did not know. He said, I will give you a while to study about it; and I sat down arid wrote him he could come back and we would be as friends again.” Prosecutrix testified they became engaged again, and appellant said that he was not financially able to marry that winter, but that they could marry next spring.” This conversation occurred in October, 1904. Appellant and prosecutrix went in a buggy to church, and on the way back, prosecutrix says, that defendant begged and importuned her to yield to his embraces by virtue of her love for and engagement to him; that it'would not hurt her, and he would see that she was not harmed by the illicit intercourse. Thereafter prosecutrix became pregnant and informed the appellant thereof as soon as she found it out herself, which was about six or seven weeks after the illicit intercourse; that she only yielded to his entreaties by virtue of her love and the promise of marriage; that she refused many entreaties and importunities before yielding to his embraces. After this prosecution was instituted, appellant went to where the prosecutrix was, and made this statement to her: “He just said that he knew it was his child, but he did not feel like he ought to marry me, and he said that was the only way to settle the ease, and asked me if I wanted to see him go to the penitentiary, and I told him if he would do what was right I didn’t; that he knew that was where he ought to be.” The fact of appellant going to see prosecutrix was amply corroborated by other witnesses in this record. The appellant ran away before the institution of this prosecution, a short while before the birth of the child and confessed to a witness, by the name of Girard, that he claimed prosecutrix as his girl and that prosecutrix was “knocked up,” and that he would have to leave—the only inference being that he was the author of her shame. Appellant admits the engagement to marry; admits that it was broken off according to the date stated above; admits his subsequent renewal of his visits and said there was no entreaty made, no suggestion of marriage, no asseverance of love, but that without a word prosecutrix yielded to his embraces on the fatal November night stated by the prosecutrix. Now, in
this case, we have the prosecutrix swearing to an infamous case of seduction. We have the appellant admitting an engagement lasting, from October to August; we have the renewal of his visits within six weeks thereafter; we have him admitting the carnal intercourse at which time the seduction, according to the State’s case, took place, but claiming there had been no promise of marriage at that time since the engagement had been broken off, but does not the engagement strongly corroborate the probable truth of the prosecutrix’ statement that said engagement was subsequently renewed? We say it does. We have the flight of appellant; we have the clandestine visits to prosecutrix after the institution of the prosecution trying to find out what she is going to swear, we have him nowhere in an attitude showing innocence of purpose or nobility of intent. During the progress of the trial in this case, appellant introduced a letter written by the prosecutrix to him which contained state-t incnts showing indelicacy and immodesty on the part of prosecutrix, if the same does not show a vulgar mind, which would be evidence of a lack, to that extent at least of chastity; but the record before us does not indicate that degree of refinement that will enable us to say that such grossness as the letter manifests, was not altogether in consonance with chastity. At any rate, whatever view of the same may be taken along the line above suggested, the best that appellant could claim would be the circumstances to indicate a lack of chastity, and it would not go to refute the idea that prosecutrix’s testimony was corroborated at all but would go to the original question as to whether the carnal intercourse was had with a chaste woman. The jury have settled the question against appellant on this issue and the question that we have now before us for consideration is, whether there is sufficient corroboration. Furthermore, this letter introduced was written to appellant long before the first engagement was broken off showing that he, himself, did not think it evinced any lack of chastity on her part but he, evidently, took same as an evidence of the boundless love and familiarity, and continued the engagement for months after this questionable letter was written. Appellant also introduced a letter, as stated above, written by prosecutrix just on the eve of her leaving home under the cruel demand of her father, which appears to be an incoherent rehearsal of the circumstances leading to her downfall. Some of the statements are at variance with her statements on the trial in this case, which statements we do not deem necessary here to collate in detail. At the time the letter was written, the facts show that the prosecutrix was laboring under great mental anguish; that a short while before she had given birth to a child, and the whole circumstance under which it was written show a herculean effort on her part to parry the wrath of her cruel father and to lessen the resentment that he felt towards her. The jury evidently took this view of the matter and we think they were amply warranted in so doing. Furthermore, the prosecutrix on the stand admitted the letter, stated the contents thereof was not true and stated the circumstances under which it was written.
[Rehearing denied.—Reporter.]
Appellant further insists that no witness testifies to the last engagement, except the prosecutrix, and she testifies that as far as she knew, no one was apprised of the renewal of the old engagement except herself and the appellant. In answer to this contention we say that the record does not indicate that any one except appellant and prosecutrix knew of the engagement that had been previously broken off, which engagement lasted for nearly a year, but the circumstances in this case show conclusively that degree of association that leads irresistibly to the conclusion that the woman, when she swears that the engagement was renewed, that her testimony is true and corroborates her statement that there was a renewal of said engagement. Furthermore, the record before us shows that up to the time of her debauch, prosecutrix had borne a blameless reputation for integrity and virtue in the neighborhood where she had lived for a number of years; that she had never gone or "kept the company of any other young man except appellant and that, no brand of suspicion had ever been attached to her name. Furthermore, the jury may have, and were amply warranted in doing so, believed that appellant when he testified to the platonic manner in which he had intercourse with prosecutrix was willfully lying since he says no species of blandishment; no asseveration of regard; no entreaty; no reluctance and no suggestion of the awful outrage that he was about to perpetrate upon the prosecutrix, was ever made prior to the time he did perpetrate same and that she yielded without a word, and he uttered not a word, except the blunt and commercial proposition to have intercourse with prosecutrix which she assented to.
If the evidence in this case does not sustain a conviction for seduction, then there is no one case in a hundred seduction cases that could be made out under the law of corroborating an accomplice. ¡Ninety per cent of the engagements of young people never take place in a public ■ way; the marital contract is not made with the coarse publicity of the purchase of a mule, or the flippant notoriety, or flippant publicity of purchasing a pocket knife. Forlorn looks of love do not prosper in the light of publicity, nor are they seldom ever indulged in. So we take it, that this record is replete with evidence clinching the conclusion, and leading beyond peradventure to the opinion that the evidence excludes every other reasonable doubt than that the testimony is corroborated, and makes not only that degree of corroboration necessary by law, but practically proves the seduction out of the lips of appellant himself. There is no limit that could be justly put upon the amount of punishment that the seducer should receive and the appellant in this case, though he received seven years, should be congratulated that he did not get more.
We hold that the evidence amply supports the verdict and the judgment is affirmed.
Affirmed.