HARPER, Judge.
Appellant was convicted of the crime of seduction, and sentenced to four years confinement in the State penitentiary.
We do not deem it necessary to recite at length the facts in the case, as in our opinion the evidence fully sustains the verdict of the jury. In the first bill of exceptions appellant complains of the action of the court in overruling his application for a continuance. In the motion for continuance he moved to continue the ease on account of the absence of some twenty-four witnesses. In the bill of exceptions and the court’s order approving same, it appears that all the witnesses were in attendanee on court during the trial of the case except three, and that appellant placed none of them on the stand as witnesses after their attendance had been secured. He states he expected to prove by Mrs. William Medford that she heard the prosecuting witness state to her mother that her illicit intercourse with defendant had been going on for four years. He states he expects to prove the same facts by Mrs. Alph Stone and Mrs. Rose Scott. The prosecuting witness, Miss Rebecca Stripling, and her mother, both testified on the trial of the ease, and both denied that any such conversation had ever taken place between them. Mrs. William Medford attended court but was not placed on the stand by appellant to prove that any such conversation took place. The attendance of Mrs. Stone and Mrs. Scott was not secured. The rule is that the refusal of a continuance will be upheld where it appears from the record, that the facts alleged to be provable by the absent witness were known by appellant to be within the knowledge of witnesses who are in attendance on court, and who are not placed on the stand to prove such facts. Nolen v. State, 14 Texas Crim. App., 474; Easterwood v. State, 34 Texas Crim. Rep., 400, and cases cited' in sec. 644, White’s Ann. Proe. In the motion it is also alleged that by the witnesses Luther Chandler, Melvin Pike, Lee Hand, Perkins Burrows, and Doug
las Patton defendant expects to prove that they waited on the prosecuting witness and were acquainted with her age, and that she was more than twenty-five years old at the date of the alleged offense. All the above named witnesses, other than Douglas Patton, were in attendance on court and yet appellant introduced none of them as witnesses. As qualified and approved by the court he did not err in overruling the motion for a new trial on this ground.
It appears that the young lady got mixed in her testimony as to the year the baby was born, saying 1910, when the record discloses that the baby was born and indictment returned in 1911. It is complained that the court permitted counsel for the State to lead the witness in seeking to have the date correctly fixed. As the record as a whole, independent of her testimony, fixes these dates, the bill presents no error.
In bill Ho. 3 it is not shown what the answer of the witness would have been to the question propounded: “Did she ever have any sexual desire?” Consequently it can not be reviewed as it is too incomplete. White v. State, 32 Texas Crim. Rep., 625, and cases cited in subdiv. 5, sec. 1123, White’s Ann. Proc. As the witness had answered she had not had any desire for sexual intercourse with defendant at the time thg first act of intercourse took place, and she yielded to his persuasion and entreaties, relying on his protestations of love and affection and promise of marriage, we can not see the materiality of the testimony sought _ to be elicited, if the bill alleged the answer expected to be elicited. And neither can we see the materiality of the testimony sought to be elicited by the question: “if she was capable of experiencing the sexual desire the first time she had sexual relations with defendant?” As before stated, she had testified that she had no such desire, and did not yield to appellant through lust or passion, or any desire she felt. The court, however, overruled the objection to the question and instructed the witness to “answer the question if you can.” The witness answered, “I do not know how to answer it.” Appellant contends that the court’s remark suggested the kind of answer for the witness to give, and that she gave the answer suggested. We do not know whether the average young lady could state whether or not “she was capable of experiencing the sexual desire” after she had testified that she had never had such desire. At least the bill should have stated what he expected to prove by the witness, and the object and purpose of such testimony, if admitted.
The record shows that when appellant- learned that Miss Stripling was with child, he fled the country. This fact was admissible, as well as the efforts of Mr. Spradly to locate him, and the fact that he had mailed out circulars seeking to locate him, as well as the fact that it was three years before he was arrested. The contents of the circulars were not admitted, but only that circulars had been mailed, and the territory which had been covered by the circulars.
Appellant contends as the court stated, when he expressed a desire to recall Miss Stripling, “Very well, but the State had rested,” that this forced the appellant to introduce her as his witness. The court, in
approving the bill, says: “This bill of exceptions is approved with the qualification that the statement of facts be referred to on this question, and further, that the witness did testify or was cross-examined by the defendant, and when the court made the statement to the defendant’s counsel that the State has rested its case, if the court made such statement, it was merely to call the defendant’s counsel’s attention to such fact, in order that he might take up his side of the case.” It is evident by this qualification of the bill and the record before iis that appellant’s counsel was permitted to cross-examine the witness as rigidly as he desired.
The next bill is very lengthy, and shows that appellant after recalling the prosecuting witness, asked the following question: “Row, I am not sure, but I believe I asked you the question yesterday, if you didn’t tell Mr. Grimes that you were in the condition, with child, I mean, away back more than a year before the time you stated in your testimony yesterday, as the time you first had sexual intercourse with. Mr. Grimes: Did I ask you that question?” The State objected to the question on the ground that she had answered it, and it would be but a repetition. The court sustained the objection. Appellant’s counsel, counsel for the State and the court had some discussion as to whether the witness had answered the question, and each giving his or their opinion. The bill is very indefinite, but after reading the statement of facts we are of the opinion that if appellant had the purpose and object in view he states in the bill he should have been permitted to ask the question and propound additional questions as to the time the first act of intercourse took place. But in this bill he does not state he could or would have fixed the time of the first act of intercourse as occurring prior to the time she said the engagement to marry occurred, by this witness or any other witness. If the bill stated that he could have secured testimony from this witness or any other witness which would have tended to support a theory that the first act of intercourse occurred prior to the time they became engaged, it would present error, but in the absence of any such allegation in the bill, we would not be authorized to presume that such testimony could or would be elicited.
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HARPER, Judge.
Appellant was convicted of the crime of seduction, and sentenced to four years confinement in the State penitentiary.
We do not deem it necessary to recite at length the facts in the case, as in our opinion the evidence fully sustains the verdict of the jury. In the first bill of exceptions appellant complains of the action of the court in overruling his application for a continuance. In the motion for continuance he moved to continue the ease on account of the absence of some twenty-four witnesses. In the bill of exceptions and the court’s order approving same, it appears that all the witnesses were in attendanee on court during the trial of the case except three, and that appellant placed none of them on the stand as witnesses after their attendance had been secured. He states he expected to prove by Mrs. William Medford that she heard the prosecuting witness state to her mother that her illicit intercourse with defendant had been going on for four years. He states he expects to prove the same facts by Mrs. Alph Stone and Mrs. Rose Scott. The prosecuting witness, Miss Rebecca Stripling, and her mother, both testified on the trial of the ease, and both denied that any such conversation had ever taken place between them. Mrs. William Medford attended court but was not placed on the stand by appellant to prove that any such conversation took place. The attendance of Mrs. Stone and Mrs. Scott was not secured. The rule is that the refusal of a continuance will be upheld where it appears from the record, that the facts alleged to be provable by the absent witness were known by appellant to be within the knowledge of witnesses who are in attendance on court, and who are not placed on the stand to prove such facts. Nolen v. State, 14 Texas Crim. App., 474; Easterwood v. State, 34 Texas Crim. Rep., 400, and cases cited' in sec. 644, White’s Ann. Proe. In the motion it is also alleged that by the witnesses Luther Chandler, Melvin Pike, Lee Hand, Perkins Burrows, and Doug
las Patton defendant expects to prove that they waited on the prosecuting witness and were acquainted with her age, and that she was more than twenty-five years old at the date of the alleged offense. All the above named witnesses, other than Douglas Patton, were in attendance on court and yet appellant introduced none of them as witnesses. As qualified and approved by the court he did not err in overruling the motion for a new trial on this ground.
It appears that the young lady got mixed in her testimony as to the year the baby was born, saying 1910, when the record discloses that the baby was born and indictment returned in 1911. It is complained that the court permitted counsel for the State to lead the witness in seeking to have the date correctly fixed. As the record as a whole, independent of her testimony, fixes these dates, the bill presents no error.
In bill Ho. 3 it is not shown what the answer of the witness would have been to the question propounded: “Did she ever have any sexual desire?” Consequently it can not be reviewed as it is too incomplete. White v. State, 32 Texas Crim. Rep., 625, and cases cited in subdiv. 5, sec. 1123, White’s Ann. Proc. As the witness had answered she had not had any desire for sexual intercourse with defendant at the time thg first act of intercourse took place, and she yielded to his persuasion and entreaties, relying on his protestations of love and affection and promise of marriage, we can not see the materiality of the testimony sought _ to be elicited, if the bill alleged the answer expected to be elicited. And neither can we see the materiality of the testimony sought to be elicited by the question: “if she was capable of experiencing the sexual desire the first time she had sexual relations with defendant?” As before stated, she had testified that she had no such desire, and did not yield to appellant through lust or passion, or any desire she felt. The court, however, overruled the objection to the question and instructed the witness to “answer the question if you can.” The witness answered, “I do not know how to answer it.” Appellant contends that the court’s remark suggested the kind of answer for the witness to give, and that she gave the answer suggested. We do not know whether the average young lady could state whether or not “she was capable of experiencing the sexual desire” after she had testified that she had never had such desire. At least the bill should have stated what he expected to prove by the witness, and the object and purpose of such testimony, if admitted.
The record shows that when appellant- learned that Miss Stripling was with child, he fled the country. This fact was admissible, as well as the efforts of Mr. Spradly to locate him, and the fact that he had mailed out circulars seeking to locate him, as well as the fact that it was three years before he was arrested. The contents of the circulars were not admitted, but only that circulars had been mailed, and the territory which had been covered by the circulars.
Appellant contends as the court stated, when he expressed a desire to recall Miss Stripling, “Very well, but the State had rested,” that this forced the appellant to introduce her as his witness. The court, in
approving the bill, says: “This bill of exceptions is approved with the qualification that the statement of facts be referred to on this question, and further, that the witness did testify or was cross-examined by the defendant, and when the court made the statement to the defendant’s counsel that the State has rested its case, if the court made such statement, it was merely to call the defendant’s counsel’s attention to such fact, in order that he might take up his side of the case.” It is evident by this qualification of the bill and the record before iis that appellant’s counsel was permitted to cross-examine the witness as rigidly as he desired.
The next bill is very lengthy, and shows that appellant after recalling the prosecuting witness, asked the following question: “Row, I am not sure, but I believe I asked you the question yesterday, if you didn’t tell Mr. Grimes that you were in the condition, with child, I mean, away back more than a year before the time you stated in your testimony yesterday, as the time you first had sexual intercourse with. Mr. Grimes: Did I ask you that question?” The State objected to the question on the ground that she had answered it, and it would be but a repetition. The court sustained the objection. Appellant’s counsel, counsel for the State and the court had some discussion as to whether the witness had answered the question, and each giving his or their opinion. The bill is very indefinite, but after reading the statement of facts we are of the opinion that if appellant had the purpose and object in view he states in the bill he should have been permitted to ask the question and propound additional questions as to the time the first act of intercourse took place. But in this bill he does not state he could or would have fixed the time of the first act of intercourse as occurring prior to the time she said the engagement to marry occurred, by this witness or any other witness. If the bill stated that he could have secured testimony from this witness or any other witness which would have tended to support a theory that the first act of intercourse occurred prior to the time they became engaged, it would present error, but in the absence of any such allegation in the bill, we would not be authorized to presume that such testimony could or would be elicited. While the young lady appears to have been mixed in giving the year, saying 1909 and 1910, where the record discloses as a whole that the events testified about occurred in 1910 and 1911, this is not surprising as appellant had been gone for three years. However, when the time was fixed that she appeared before the grand jury, made the trip to Houston, where her baby was born, she was definite as to the time occurring prior to those events when all the matters occurred; and her testimony as a whole shows conclusively that, taking these facts into consideration, she fixed the time definitely when the first act of intercourse occurred some time after they had become engaged, and if her testimony is to be believed, she yielded to his persuasions because she believed the engagement would be shortly merged into the marriage relation, and she .was led into such belief by the' representations of appellant.
As we think the testimony will sustain the conviction, we, of course,
are of the opinion the court did not err in refusing to give peremptory instructions to acquit, and in overruling his demurrer to the evidence. The court instructed the jury:
“By the term ‘seduction’ as used in this charge, is meant, to lead an unmarried female away from the path of virtue.
“Before a conviction can be had in this case, you must believe from the evidence, beyond a reasonable doubt, the four following propositions:
“(a) That the defendant had sexual intercourse with Bebecca Stripling in Nacogdoches County, Texas, at some time within three years before the date of the filing of the indictment in this case.
“(b) That the said Bebecca Stripling consented to said act of intercourse, if any, upon the sole ground of a promise of marriage made to her by the defendant, W. D. Grimes, at the time or before said act of intercourse, if any, and that such act of intercourse was not indulged in by the said Bebecca Stripling, if it was, on account of desire on her part, lust, passion, or other consideration than a promise of marriage.
“(c) That at the time of such sexual intercourse, if any, the said Bebecca Stripling was under the age of twenty-five years.
“(d) That at the time of the said act of intercourse with the said W. D. Grimes, if there was such, that she, the said Bebecca Stripling, was a virtuous female, that is, that she. had never had sexual intercourse with any man up to said time.
“If you do not find, beyond a reasonable doubt, each and every one of the above four propositions to be established, by the evidence, you will return a verdict of not guilty in this case, as the State must establish not only one hut all of said four propositions, beyond a reasonable doubt, before a conviction can be had in this case.
“A conviction can not be had upon the testimony of an accomplice alone. You are instructed that the witness Bebecca Stripling is an accomplice. Now, you can not convict the defendant upon her testimony alone unless you first believe that her testimony is true and connects the defendant with the offense charged, and then you can not convict the defendant upon said testimony unless you further believe that there is other testimony in the case corroborative of the accomplice’s testimony, tending to connect the defendant with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense charged.”
This charge on accomplice testimony was specially laid down and approved by this court in a case of seduction. Campbell v. State, 57 Texas Crim. Rep., 301; Slaughter v. State, 76 Texas Crim. Rep., 157, and authorities cited. The court, having instructed the jury as he did, it was not error to refuse the special charges requested on this issue, and as the main charge of the court presented every theory of the case, there was no necessity to give any of the special charges requested.
There was no proof offered in regard to the allegation in the motion for a new trial alleging misconduct of the jury. No affidavits in support of such allegation are appended to the motion, and if any evidence
was offered on the hearing of the motion, it is not in the record. The court in his order overruling the motion says “he heard the evidence submitted thereon,” and appellant, if he expected us to review that ground of the motion, should in a proper bill of exceptions have included that testimony in the record.
The judgment is affirmed.
Affirmed.