Gillespie v. State

166 S.W. 135, 73 Tex. Crim. 585, 1914 Tex. Crim. App. LEXIS 239

• Court: Court of Criminal Appeals of Texas
• Decided: March 14, 1914
• Docket: No. 2800.
• Status: Published

Opinions

Appellant was convicted of seduction, his punishment being assessed at two years confinement in the penitentiary.

The record discloses that the judge called a special term of the court to meet on the 19th day of May. This seems to have been occasioned by reason of the fact that the Legislature changed the time of holding terms of the District Court in that county. To avoid any possible or probable consequences, the judge called the special term to meet on the same day the regular term convened under the prior law. At the time of calling the special term the new law was not in force and would not be until July. Under previous Act of the Legislature the court in regular term convened on that particular Monday, which happened to fall on the 19th of May. So we have, as a matter of fact, the special term called for the same day that the regular term should have convened. Had the judge not called the special term for that particular day, under the law the regular term would have convened. We are of opinion that there is no merit in appellant's proposition, that the special term was unauthorized by law. It would make no difference that the judge issued his order calling the special term on that day. It would have been the regular day for the term any way. It did not in any way interfere with the two regular terms required by the Constitution for the District Court to be held in the county.

The indictment incorporated in the record fails to conclude "against the peace and dignity of the State," as required by the Constitution. It may be this was an omission on the part of the clerk in transcribing the indictment, but such is the record. This renders the indictment invalid, and for this reason the judgment must be reversed. We notice this question in passing, for by certiorari this defect might be cured by showing it was an omission by the clerk in transcribing the indictment.

There are other matters in the record that will have to be noticed, and which, in our judgment, require a reversal. The prosecutrix testified substantially that appellant and she had been going together since 1907, and became engaged to be married; that when the first solicitation on his part was made she agreed to and did have intercourse with him under this promise of marriage. She states also, in substance, that he told her if she became pregnant or anything happened he would immediately marry her, and too quick for it to be known. Sometime in 1910 she says the first act occurred, and that it kept up with regularity as occasion presented until a few months before the birth of her child; and that on each of these occasions he promised to marry her. There is evidence also that she went with several other young gentlemen in the neighborhood on various and sundry occasions to different functions, church and other places. Some of these associations with other young gentlemen were shown to have been at night and when she was alone with them. The defendant also introduced evidence to the effect that she was caught in some bushes in a very compromising attitude with one Burton. This was denied on the part of the State, and there was evidence pro and con as to whether it was Burton that she was seen with, but the defendant's witness was pretty positive as to this fact. The defendant admits going with the girl and having intercourse with her, but denies there was any promise of marriage.

The court in a general way gave the jury a definition of seduction. Applying the law to the case the jury was informed that if they should find from the evidence that appellant "by a promise to marry her made by him to Lela Heffington, did seduce and obtain carnal knowledge of her, and that she was at the time a chaste and unmarried female under the age of twenty-five years, and that she yielded her person to and had carnal intercourse with the defendant by reason of a promise of marriage made by him to her on which she relied," then he would be guilty. He also charged the prosecutrix would be an accomplice, and that the corroboration would not be sufficient if it merely shows the commission of the offense charged, but it must tend to connect the defendant with its commission, and then from all the evidence the jury must believe beyond a reasonable doubt the defendant is guilty. He then charged them that it was not necessary that the evidence be positive and direct; that she could be corroborated by circumstances which tended to connect the defendant with the commission of the offense charged. Then he gave this clause in the charge: "It is for you to say from all the facts and circumstances in evidence before you whether she has been sufficiently corroborated, and if you find there is an absence of such corroborative testimony, you must acquit the defendant." We notice this clause in passing because of further matters suggested in connection with the court's charge and refusal to give special instructions. We desire to say that it hardly states the rule correctly, to say it is for the jury to say from the facts and circumstances that she has been corroborated; the corroboration must tend to connect defendant with the offense; nor is it correct to require the jury to find there was an absence of corroboration in order to acquit. This changes the burden of proof and requires the jury before they can acquit to find an absence of corroboration. The rule is that she must be corroborated, and unless she is so corroborated the jury will acquit. It is not the absence of corroboration which requires acquittal, but it is the presence of corroboration that authorizes a conviction, and unless she is corroborated the State has no legal case. Under this rule laid down by the court the jury could not acquit unless they should find that there was an absence of corroboration. The rule is the reverse, — that the State must show the corroboration in order to get a verdict.

The court further charged the jury that if they should believe from the evidence that appellant had carnal intercourse with prosecutrix one or more times, but believe that at the time the first act of intercourse she was not a chaste woman, or if they had a reasonable doubt of that fact, they should acquit, even though the jury might find that such act of intercourse was produced by a promise of marriage, or if they should find that she was a chaste woman at the time of the first act of intercourse between her and defendant, but should find that she yielded to same not because of a promise of marriage, but on account of her own amorous passion or sexual desires, or if they had a reasonable doubt, they should acquit, or if they believed the first act of intercourse between defendant and prosecutrix was induced or brought about by any means other than by a promise of marriage made by defendant to her upon which she relied, or if they had a reasonable doubt thereof, they should acquit, of if they had a reasonable doubt as to whether defendant promised to marry her they should acquit. Various objections were urged to these charges at the time, and appellant asked, among other things, the following charge: "The jury are instructed that in this case you can not find that there was a promise of marriage upon the testimony of the prosecutrix, Lela Heffington, alone, but under the law her evidence as to the promise of marriage must be corroborated, that is confirmed by direct and positive testimony or by circumstances of such a character as to convince the jury beyond a reasonable doubt that her testimony in this respect is true." This charge was refused because the court says it was covered in the main charge. We are of opinion that it was not, and especially in view of the fact that the court charged the jury as above mentioned, that if the jury should find there is an absence of corroboration they would acquit. The special charge should have been given, and under the attitude of this record, the error in the court's charge and refusal to give the special requested instructions, the judgment ought not to be affirmed.

Exceptions were also reserved to the charge because it failed directly and affirmatively to instruct the jury that if the prosecutrix yielded her virtue under promise of marriage to appellant that if she became pregnant he would marry her, he should be acquitted. This was not pointedly given to the jury, and under the testimony we are of opinion it should have been affirmatively charged, and that this particular question should have been called to the attention of the jury in the charge. The testimony of prosecutrix indicates that this may have occurred, and that she yielded her person to him on a promise that if she became pregnant he would marry her.

There are several bills of exception reserved to the ruling of the court an the admission and rejection of testimony. The reputation of the prosecutrix became a leading question in the case. It was attacked for want of chastity and virtue. The appellant supported his theory that she was not a chaste woman and introduced quite a lot of evidence showing she was out at night with other men, and at times and under circumstances which reflected upon her character for chastity, and tended to show that it was not good, that is, that such conduct was a reflection upon her chastity and good name. The State introduced evidence to support her reputation for chastity as being good, and to show that her conduct was lady-like in every respect. This was admitted, it seems from a bill of exceptions, because defendant had shown she had been out at night at unreasonable hours with other men driving around the country. As before stated, to meet this the State introduced evidence of her general standing and reputation for lady-like deportment. The defendant then proposed to prove and offered testimony to show that on one occasion she had a difficulty with a young gentleman at a church in which she called him a damned son-of-a-bitch. There are other bills of a similar nature. The court excluded this testimony, but qualifies the bills by stating that later during the trial he informed defendant he could introduce it, but he failed to do so. Under the wide range of testimony and the attitude in which the case was placed, this testimony was clearly relevant, and should have gone to the jury, and but for the failure of appellant to avail himself of the offer of the court, it would be reversible error. There are two or three bills of this sort, which it is unnecessary to discuss seriatim.

Another bill recites that the prosecutrix was called back by the county attorney and the following matters occurred: She was asked by the county attorney: "You told Mr. Woods this morning that you wrote to him (Jeff) to come back; tell the jury why you did that." Appellant excepted for various and sundry reasons, among others, that it was not proper to state why she wrote for him to return, unless the defendant knew of her reason; that he could not know of those reasons unless he had been informed. The court stated in the presence of the jury: "I do not know whether that is admissible or not. There is no way for me to know what the answer of the witness would be. If you gentlemen would indicate to me about it. . . ." Counsel approached the court while on the bench and they consulted privately. Counsel for both sides then returned to their places at the bar in front of the jury, and the following question was propounded by the county attorney: "Tell the jury why you wrote him to come back?" Mr. Woods, counsel for defendant, excepted because the letter would be the best evidence, and because her feelings and her education on the subject since this suit was begun would be in the nature of manufactured testimony. The court stated "very well," and Mr. Woods excepted to the question and the answer. Mr. Puckett for the defendant remarked: "We want to get our bill of exceptions this way; the letter would be the best evidence, any reason she had of her own not expressed to defendant would not be binding on the defendant, and would be prejudicial, immaterial, irrelavant and hearsay." And the court's answer was, "All right." The county attorney asked: "Tell the jury why you wrote him to come back?" The witness answered: "I was uneasy." The county attorney further propounded this question: "Why were you uneasy?" And the witness, Lela Heffington, proceeded to answer: "I had missed my sickness four or five days and I was uneasy and wrote to him to come back." Various objections were urged to this, that it was immaterial, irrelevant and had a tendency to prejudice the jury against defendant's rights, etc. We are of opinion this testimony was not admissible, unless it was shown defendant received the letter, and that he was notified in some way of her reasons for wanting him to come back. Her undisclosed reasons would not affect the defendant, and could not be binding on him. Upon another trial, unless these matters are shown in some way to have been brought to the attention of the defendant, they would not be admissible. Another bill recites that State's counsel asked prosecutrix while on the stand as a witness for the State, if she told her mother. Counsel for defendant then said: "We asked her who she told and she gave one party, Mrs. Wilson," and the court remarked from the bench, "Go on and complete your question, Mr. Terry, and I will rule on it then." Whereupon Mr. Terry asked: "Want to ask you if your own mother was living?" Counsel for defendant objected to said question and manner of examining the witness as being irrelevant and immaterial and prejudicial to defendant's rights. These matters were overruled by the court, and the witness answered: "In a grave and solemn manner of an actress, with tears in her eyes, before the jury, with her head hung down, meaning that her mother was not living at the time when this transaction took place." The mother of prosecutrix had been dead for years, and this question was not germane to what had been asked by defendant. His question was if she had told anybody, and she specified the only one told was Mrs. Wilson. It was not necessary to an explanation of this question or answer that she had or had not told her mother; it was not germane to this question that her mother was dead, and, therefore that she had not told her, especially in view of the fact that she had been dead quite a number of years. The evidence shows that the girl was over twenty years of age, and had a stepmother. Under the Kearn case,68 Tex. Crim. 633, 151 S.W. Rep., 827, this evidence seems to be admissible.

Another bill recites that the State offered Oleson in rebuttal, who testified that he was acquainted with the general reputation of the prosecutrix in the neighborhood where she lived in 1909 and 1910, for chastity, and it was good, that is to say, witness testified he never heard it questioned. He further testified he was acquainted with prosecutrix and frequently saw her out at parties, and public gatherings in that neighborhood during the two years above mentioned, and that her conduct as observed by him was always that of a lady, and he never observed anything on her part as unbecoming a lady, and after he had so testified the defense asked the witness if Tom Eubank who lived in that neighborhood during 1909, who had also testified for the defense, did not catch him and Miss Lela Heffington, prosecutrix, out on the public road, a public highway, in a buggy between Prairieville and Mabank one night in the early fall of 1909, about midnight or a little after, when he, Tom Eubank, was passing coming from Mabank home to Prairieville; and the witness was also further asked, in view of what he had testified in behalf of the good character and conduct of prosecutrix, the question: "Is it not a fact that you went to Mr. Tom Eubank, the witness, next morning thereafter and privately requested him (Eubank) to never say anything about having seen him (Oleson) and Lela Heffington out together the night before on the public highway at that time of night." This was objected to, but no reason assigned why, and the testimony was excluded. It was stated the witness would answer that he did go to Eubank and make the request the next morning, and this would have been material and if witness had denied it, Eubank would have testified to the facts stated, that is, that he saw Oleson and prosecutrix on the public highway about midnight in the fall of 1909 between Prairieville and Mabank in a buggy, and that Oleson did come to him the next morning and ask him never to say anything about having seen him. We are of opinion this testimony, upon another trial, should go before the jury. The testimony in this connection took widest range, therefore the above was germane.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.