In this case appellant was prosecuted, charged with seduction, was convicted and his punishment assessed at three years confinement in the penitentiary.
The record discloses that the alleged seduced female and appellant are cousins, and prior to this occurrence both were of good standing. The prosecuting witness, Miss Annie Slaughter, testified that she was twenty-one years old, and that defendant was twenty-three years of age; that they were third cousins. That she had known defendant about six years; that appellant first began to come to see her or court her in the fall of the first year she met him. She was living with her parents in the Polk neighborhood at that time, and he continued to come to see her for three and a half years. That she was pregnant, and John Knight was the cause of the pregnancy; that she had never had intercourse with anyone else except John Knight. That she had testified at the examining trial of defendant, and shortly thereafter, while at home, she was told by her mother to go to the telephone. That she had a talk with John Knight over the telephone; that she recognized his voice, and that he asked her if she would come to the residence of Mr. Crockett, as he wanted to have a conversation with her. That she asked her mother, and agreed to meet him at the residence of Mr. Crockett. That her aunt, Mrs. Mattie Goldsberry, went with her. That Mr. Crockett met them at the door, and when they went in defendant was there. That defendant
and Mr. Crockett refused to talk in the presence of her aunt, and wanted her aunt to retire. This her aunt refused to do, and she had no conversation with the defendant at this time. That during the years 1907, 1908 and 1909 she had corresponded with defendant and identified a number of letters which were introduced in evidence. That she first became engaged to marry appellant about Christmas in 1907, and that the engagement continued until in April, 1909; that the engagement was renewed in May, 1910. That she was at the residence of Mr. Jim Buley in December, 1907, when she and defendant first became engaged to be married, and that defendant had been coming to see her for about a year and a half at that time, and continued his visits and correspondence until in January, 1909, when the first act of intercourse with defendant occurred. That she had never had intercourse with anyone else. That in the fall of 1908, when defendant came back from school, he said he was going into business the next year, and would be ready for her; that was about a month before the first act of intercourse. That the first time he ever suggested having sexual intercourse with her was at Rebecca Switch in 1908. He did not come right out and say what he wanted, but she knew by his actions and his ways, and she told him she only had her character. That he knew her father was not a wealthy man, and that she had to shield her character, and he said not to be uneasy about her character, he would never mar it, and that as they were going to get married what difference did it make, but she refused at that time; but that in January, 1909, while he was visiting her at her father's home and while she was sitting in his lap, he had carnal intercourse with her the first time. She testified to other acts of intercourse subsequent to this time in 1909, one in about a week subsequent to this time, and one in April. That in April, 1909, a disagreement came up. That she had intercourse with him that day, when she told him that they should either marry or such proceedings should stop. "He said it did not make any difference, as we were going to marry anyway, and he didn't see why I shouldn't want to grant his wishes, but he said I can quit coming to see you if you want me to. I told him I didn't mind his coming, but such proceedings as that I wouldn't go through with any more. Such proceedings as I have mentioned give me pain and very much humiliation." That was the afternoon he asked her to let him see the ring, and she gave it to him. This was the ring she termed the engagement ring. She says she did not ask him what he wanted with it, and he kept it, and she supposed he considered the engagement broken off after he got the ring, as he did not come to see her any more until in May, 1910. She says:
"He came to go walking. He said that John Garrett and Eula Smith would meet us at the College Campus. He didn't say where we were going — he said we would decide when we all got together where we would go. He came to my house and we went up to the
College. My mother was at home at the time he came. No one left home at that time with me but the defendant, John Knight, and we went south towards the College Campus and we joined Eula Smith and John Garrett there. That was in May, 1910. John Knight and John Garrett and Eula Smith and myself went over to Matthew Cartwright's pasture. We went by Mr. John Brooks' place, going a trail — we went through a large gate into the pasture. John Knight and myself went in first — after we went through the gate into the pasture we did not go together — John Garrett and Eula Smith went to the right and John Knight and myself went down further to the left. When John Knight and myself came out of the pasture we met Eula Smith and John Garrett at the gate. I suppose we were down in the pasture about two hours. That was a large pasture and full of shrubbery. We went to a shady place and sat down and talked of the general happenings of the town, and then I asked him for the first time why he had done me like he had the year before. He said, `You know I love you better than any other girl, but you seem so strange, I couldn't come back to see you.' I told him that if he cared as much for me as he said he did he wouldn't stay away on that account. He said, `Well, I have been into a little trouble, but I still love you, and when I get out of this trouble I am going to marry you,' and then proceeded to put his arm around me, and I withdrew and told him not to do that, that it didn't make any difference if I still loved him. He then placed me on the ground and had intercourse with me.
"After I had sexual intercourse with the defendant, John Knight, in Mr. Cartwright's pasture in May, 1910, I had sexual intercourse with him at my home in the parlor and on the front porch. The date of the last sexual intercourse with the defendant was the 2d week of July, 1910. I yielded to the defendant and had those sexual intercourses with the defendant only because he promised to marry me. He promised to marry me again in May, 1910, and I was afraid if I did not submit to his wishes he would not marry me. I had faith in his promises or I would never have submitted myself to no such conduct with him."
On cross-examination she stated that if she had testified that the first time they became engaged was in December, 1907, that she meant 1906, as that was the time it was, and it was renewed in Mr. Buley's house. That they had become engaged at her uncle's home in December, 1906, when he told her how much he loved her, and asked her if she would wait for him, and she had told him that she would. That defendant had got mad in the summer, but the engagement was not broken, and when he came to see her Christmas it was renewed. "He told me at this time he was not able to take me then, but when he got financially able to he would marry me. This was in December, 1907. The understanding was that we would be married when he got able to take care of me, and in December, 1908,
he had said he would be ready for me next year — that he was going in business." She was asked in regard to her testimony at the examining trial, and defendant introduced a part of her testimony, it being as follows:
"He had been going to see me about two years before we became engaged. I do not remember how he approached the subject of marrying. He never did come plain out and engage to marry me. At the time he first had intercourse with me, and at all of the other times that he had intercourse with me up until last May, there was nothing said about marrying. The first act of intercourse was in January, 1909."
1. The defendant did not testify in the case. The first bill of exceptions relates to the admissibility of the testimony of the witness Barto McClary, who testified that in the spring of 1907, he delivered a package to the prosecuting witness, which was about an inch square and resembled a box in which rings are ordinarily kept, to which testimony defendant objected. The State had proved that appellant had bought a ring at the store at which this witness was working about the time, and the prosecuting witness, Miss Slaughter, testified that this witness brought her the ring, which was the engagement ring, in May, 1907, and she kept it until in April, 1909, when defendant had in person requested its return, and took it. Under all these circumstances we think this testimony admissible.
2. In the second bill of exceptions it is stated that Mrs. Kate Slaughter, mother of prosecutrix, had testified that on Thursday after the examining trial of appellant on this charge that someone, and she testified it was appellant, called her up and asked to speak to the prosecuting witness, to which appellant objected, stating various reasons. This witness testified that she recognized appellant's voice, and had often talked with him over the telephone. This was followed up by the testimony of the prosecuting witness that her mother instructed her to go to the telephone, and when she went to the telephone, she recognized appellant's voice, and appellant made an engagement to have a conversation with her at the residence of Mr. Crockett. That in accordance with this engagement she went to Mr. Crockett's and appellant was there. There was no error in admitting the testimony, for in addition to the witness testifying she knew and recognized his voice, it is followed by evidence that renders it clear that it was appellant talking.
3. In the third bill appellant objects to Mrs. Mattie Goldsberry testifying as to what was said when she and her niece (the prosecuting witness) went to the residence of Mr. Crockett, and especially that part wherein she stated she objected to her niece having a conversation with defendant alone in the presence of Mr. Crockett, when she was requested to retire, and further said she did not think they had any talk coming; that all they needed was a marriage license and a preacher. The witness' entire testimony is as follows:
"I know J.A. Slaughter; he is my half-brother. I know Miss Annie Slaughter; she is a daughter of J.A. Slaughter, my own niece. I know John Knight. I have known him since he was a child. I know Mrs. Kate Slaughter; she is my half-brother's wife. I remember about the examining trial wherein John Knight was charged with having seduced Miss Annie Slaughter here in town. Some time after the examining trial, along about the first of December, I went with Miss Annie Slaughter to Mr. Geo. Crockett's. We went from my half-brother's house, J.A. Slaughter's house, to Geo. Crockett's. There was no one else accompanied Miss Annie and myself to Mr. Crockett's except the driver with the surrey. When we reached Mr. Crockett's we found the defendant, John Knight, there at Mr. Crockett's.
"When I went in with my half-niece, Mr. Crockett carried me into the room where John Knight was sitting, and I made some remarks about the weather and then Mr. Crockett said to me that John Knight had requested that Annie Slaughter come there that he might talk with her. That occurred in John Knight's presence. Mr. Crockett said that John Knight wanted to talk to Annie alone in his presence. He wanted to talk to Annie Slaughter in Mr. Crockett's presence and me leave the room, and I said that I did not think there was any subject to be discussed between John Knight and Annie Slaughter except the subject of marrying and a preacher. That they had talked enough heretofore, and so when I said that Mr. Crockett said he thought so, too. He said he did not know anything about it. That he was there to try to help matters and I refused then to leave the room for John Knight to talk with Annie Slaughter in Mr. Crockett's presence and no other one present. I told Mr. Crockett I thought that they had the advantage. John Knight had asked her presence over there, and Annie's father was not at home and I came with her, and I told Mr. Crockett I thought that he had the advantage of the girl, that Mr. Crockett was this young man's kinsman, also his bondsman, and that I thought it was taking undue advantage of the girl for her —
"Well, I thought they had the advantage of the girl. I told Mr. Crockett that he was related to the boy and he was his bondsman and that they did not ask to talk alone, that they asked for Mr. Crockett to be present there and not to allow me to be there, and so I said I would not do it, that I thought they had the advantage of the girl. The boy asked me if I did not trust him — John Knight asked me that question — and also asked me if I didn't believe — let me go back a little. I said I told Mr. Crockett that I could not say that, if he did not want to marry the girl, I could not see what his object was unless it was to talk in Mr. Crockett's presence and try to get this girl in her cowed condition to use something against herself and might force Geo. Crockett as a witness —
"And so Mr. Crockett said that he did not like the responsibility
of such a position, but said that he was trying to amend matters, and this young man asked me if I would not believe Mr. Geo. Crockett. If I did not believe that Mr. Crockett would tell the truth, and I said I did not think it was a question of Mr. Geo. Crockett's integrity at all; that I had as much confidence in him as any, but I thought that it looked like they were using Mr. Crockett as a tool, and so we talked and we talked on this same line, and I finally asked Mr. Foster's advice. Mr. Foster is a lawyer, and I said if I was wrong I would like to know it. They did not talk. He would not talk because he would not talk in my presence. I left there and took the girl with me. The defendant was present during the whole time."
This occasion was the result of appellant's effort to arrange a private interview with prosecutrix, and the aunt had the right to state to him the objections to such interview and the fact that he made no reply indicated that he was unable to combat them or to deny them. When any statement is made in the presence of one accused of crime, which calls for a reply, his silence imports his inability to truthfully deny it. The aunt objected to any conversation, but said what was needed was a marriage license and a preacher. The appellant had arranged the meeting and asked for a private talk between himself and his alleged victim; the guardian angel of the latter say nay, no talk, but action in the form of a license and a preacher; the appellant answers nothing. Surely, under such circumstances it was incumbent upon him to deny that the office of a marriage license and a preacher were demanded by the environments of the occasion. He stood mute in the face of the implied accusation, and surely this action was admissible as a fact to go to the jury. No one save appellant knew his purpose in seeking a private interview with the chief witness against him, and when the aunt tells him a license to marry and a preacher were the only things appropriate under the existing conditions, wherein stood face to face, in the presence of assembled witnesses, he who stood charged with the offense of seduction, and she, whom it is alleged he had seduced, and he remains mute under those circumstances, the fact is admissible against him because had he been innocent, the courage thereof would have impelled him to have denied that a license and a preacher had any place in the proceedings. His silence in the face of such language was an acquiescence in the truth thereof. Moore v. State, 15 Texas Crim. App., 1; Wharton's Crim. Ev., sec. 680; Greenl. Ev., sec. 197; Browning v. State, 26 Texas Crim. App., 432; Clement v. State, 22 Texas Crim. App., 23; Bennett v. State, 39 Tex.Crim. Rep., 48 S.W. Rep., 61; Connor v. State, 17 Texas Crim. App., 1.
4. In bill of exceptions No. 4 it is claimed that the court erred in admitting the testimony of Eddie Alvis, who testified that he heard a conversation between defendant and one Jeanes, in which
Jeanes stated that he had been having intercourse with "coons," to which defendant replied, "that he was not monkeying with coons, that he was going into the best parlors in the town, where he was getting better stuff than that," and in bill of exceptions No. 5 it is claimed that the court erred in permitting the witness Rea Thompson to testify that appellant had stated to him, "that he (witness) would be surprised if he knew from whom he was obtaining intercourse in the town of San Augustine." Defendant objected to this testimony on various grounds as set forth in the bills. Under the rules of law as laid down by this court, the prosecuting witness must be corroborated in the fact that defendant had had sexual intercourse with her, and as said by Judge Hurt, the seducer does not ply his nefarious designs in the presence of the multitude, and in the midst of witnesses who can testify to seeing an actual act of intercourse between the parties, hence the necessity of corroborating the witness by circumstantial evidence, and in cases where circumstances are relied on to corroborate the testimony of a witness, greater latitude is allowed in making the proof than when direct testimony is obtainable. (Ballew v. State, 36 Tex. 98; Noftsinger v. State, 7 Texas Crim. App., 301; Preston v. State, 8 Texas Crim. App., 30; Early v. State, 9 Texas Crim. App., 476; Simms v. State, 10 Texas Crim. App., 131; Washington v. State, 8 Texas Crim. App., 377; Means v. State, 10 Texas Crim. App., 16; Green v. State, 12 Texas Crim. App., 51; Pogue v. State, 12 Texas Crim. App., 283; Langford v. State, 17 Texas Crim. App., 445; Barnes v. State, 41 Tex. 342; Cooper v. State,19 Tex. 450.) In these cases it being held that in a case depending upon circumstantial evidence, the mind seeks to explore every possible source from which light, however feeble, may be derived, and in such case it is peculiarly proper that the jury should have before them every fact and circumstance, however slight, which might aid them in coming to a satisfactory conclusion as to the guilt or innocence of the accused. And in the case of Sims v. State, 10 Texas Crim. App., 131, this court held that in cases of circumstantial evidence no definite line of demarkation can be drawn with regard to facts proximate and remote. The test is: Do they tend to throw light upon the transaction? And the testimony of the witness Rea Thompson is rendered peculiarly admissible in this case, for while he says that the above conversation took place early in the year 1910, he states that subsequently during the same year this defendant stated to him "that he (defendant) had got Miss Annie Slaughter, the prosecuting witness, knocked up."
5. The next bill refers to the testimony of Dr. Davis, which is to the effect that prosecutrix was his niece and had told him she was pregnant, which statement, he being a physician, had found from an examination to be true. The ground being that it was not corroborative of the testimony of the prosecuting witness. The rule is when an objection is made to testimony, a part of which only is
admissible, then in such event, it is not error to overrule the objection. The statement of the prosecuting witness made to her kinsman was hearsay, but the fact that he had received certain information from her by reason of which he made an examination of her and found she was pregnant was evidence tending to corroborate her testimony that she had had sexual intercourse with someone, while it would take other testimony perhaps to connect the appellant with the act of intercourse which caused the pregnancy. But all the circumstances can not be obtained from any one witness. The fact sought to be proven was the pregnancy of the prosecutrix, and this fact, established by the physical examination, was admissible, and was not really controverted, and so that admission of the statement of the prosecuting witness to the doctor, even if inadmissible, was an uncontroverted fact. Williams v. State, 24 Texas Crim. App., 17; Tubb v. State,55 Tex. Crim. 606; Windham v. State, 59 Tex. Crim. 366; Heimes v. State, 59 Tex.Crim. Rep.; Railey v. State, 58 Tex.Crim. Rep.; Decker v. State, 58 Tex. Crim. 159; Carter v. State, 56 Tex.Crim. Rep.; Anderson v. State, 56 Tex.Crim. Rep.; Romero v. State, 56 Tex. Crim. 435; Arnwine v. State, 54 Tex.Crim. Rep.; Tinsley v. State, 52 Tex.Crim. Rep..
In this latter case, in discussing testimony held to be admissible, this court says: "One of the safe rules in ascertaining whether the evidence prejudiced appellant, is the question, did the evidence in any sense tend to strengthen the State's case? If it did not, it would not present reversible error," and in no sense can it be said that the statement of prosecuting witness to the doctor that she was pregnant tend to strengthen the case, when the doctor testifies that he made a physical examination and found that she was pregnant, which fact was admissible in evidence.
6. In bill of exceptions No. 7 defendant complains that the State was permitted to prove by Mrs. H.J. Matthews and a number of other witnesses, that they were acquainted with the general reputation of the prosecuting witness, Miss Annie Slaughter, in the communities where she had lived, for chastity and virtue, and that her reputation in those respects was good, and that she moved in the best society. This testimony was admitted as original testimony, and before the prosecuting witness was placed upon the stand, and before the defendant had offered any testimony. When Miss Slaughter was introduced as a witness, defendant sought to prove by her that no promise of marriage existed when the acts of intercourse took place in 1909, and offered the excerpts from her examining trial testimony heretofore herein copied. Defendant also introduced his mother as a witness, who testified that she had seen a letter written to appellant by Miss Slaughter (which had been destroyed) in which it was stated that she (Miss Slaughter) wanted appellant to advise her what to do as a friend, as she was afraid to tell her folks about
it, and in which letter the witness said prosecuting witness stated appellant was under no obligations to her. The prosecuting witness denied writing any such letter. By the introduction of this testimony, and the cross-examination of the prosecuting witness, the appellant sought to prove to the satisfaction of the jury that the acts of intercourse in 1909 were the result of the mutual lust of each of the parties, and appellant had not seduced the prosecuting witness, thus attempting to show that she was not a chaste and virtuous woman, but one who was controlled by her lustful desires. This would have rendered the testimony of her reputation as a virtuous and chaste woman admissible in rebuttal, and the fact that it was admitted prematurely, would not be reversible error, if at any stage of the trial the testimony became admissible. In the case of Cox v. State, 8 Texas Crim. App., 254, this court holds: "We must look at the real competency of the evidence and not the order of its reception; and when we find that it was fully competent, we will not reverse because of the time or order of its introduction." Moore v. State, 7 Texas Crim. App., 14. But at the request of counsel in this case, we will discuss whether or not, in a case of seduction, the reputation of the injured female for virtue and chastity can be introduced as original testimony. Our Penal Code provides: "If any person by promise to marry shall seduce an unmarried female under the age of twenty-five years, and have carnal knowledge of such female, he shall be punished by imprisonment in the penitentiary not less than two nor more than ten years." In this article of the Code there is no provision that if the alleged seduced female had by consent, under any circumstances, had carnal intercourse with a man, she would not be the subject of seduction, and yet the decisions of this court incline to that rule in Texas. Mrous v. State, 31 Tex.Crim. Rep.; Simmons v. State, 54 Tex.Crim. Rep.. This case illustrates the workings of such a rule. If Miss Slaughter is to be believed, by the acts of intercourse in January, 1909, the offense charged was committed. She says in 1909 they carnally knew each other twice more, when, at the last act, in 1909, she informed appellant that such conduct must stop, or that they must get married; that this conduct caused her pain and humiliation, when appellant asked for the engagement ring and told her if she could not comply with his wishes he would cease to visit her, and because she would not continue the illicit intercourse, he did cease to visit her and broke off the engagement. By the record it is not disclosed that the prosecuting witness was guilty of any improper conduct, or had intercourse with any other person, nor is it sought to be proven that she was of loose character, yet the appellant insists and the trial court, under the decisions of this court, instructs the jury that although they may believe that when appellant again began to visit her in May, 1910, that appellant became engaged to marry prosecutrix, and by his conduct in May, 1910, seduced the
prosecuting witness, yet he would be guilty of no offense if she had theretofore had carnal intercourse with appellant. While in this contention we do not fully concur, and do not think our decisions go to that extent, and in many jurisdictions it is held that if a woman is seduced and then reforms and leads an upright and moral life, and is again led astray by the machinations and blandishments of a pretended lover, the second constitutes an offense as well as the first, but the trial court, at the request of appellant, held the second act in 1910 constituted no offense, yet if in any case, the second act could constitute an offense, it seems that the facts in this case would present such a case. However, the trial court in thus instructing the jury, at the request of appellant, states that appellant could not be convicted of any offense after the first act of intercourse, and if the fact that a woman is not a woman of virtue and chastity, or that under any given conditions has by consent submitted to the embraces of a man, is a complete defense, then it is an issue in every case, as to whether or not she is a woman of virtue and chastity, or has been guilty of carnal intercourse with any other man. It seems to have also been well established by the decisions of this court that a defendant can prove the character of the prosecuting witness in every case, and whether or not her conduct has been such as to bring it into question. (Kelly v. State,33 Tex. Crim. 31; Mrous v. State, 31 Tex.Crim. Rep.; Parks v. State, 35 Tex.Crim. Rep.; Creighton v. State,41 Tex. Crim. 101; Davis v. State, 36 Tex.Crim. Rep.; Nolan v. State, 48 Tex.Crim. Rep.; Jeter v. State,52 Tex. Crim. 212; Caviness v. State, 42 Tex. Crim. 420; Carter v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 215.)
It is true, that every woman, in law, is presumed to be chaste and virtuous, but if this proof is necessary in every case of seduction, is the State bound to rely solely on this presumption? If it is an issue of fact, the State can not be forced to rely solely upon this presumption, but it can go further and offer additional proof on this issue. Of course, the best evidence obtainable must be offered in every case, and in a case of seduction where the virtue and chastity of a woman is an issue, is not her general conduct in life, and the general reputation she gains by her life the best evidence on this issue that is obtainable? And if the defendant can offer evidence of this character, by what rule of law would the State be excluded from also introducing it? It is true that general reputation is not generally admissible until some impeaching testimony is offered, but that is because such fact does not become an issue in the case until the impeaching testimony is offered. However, in seduction, the decisions of this court make the virtue and chastity of a woman an issue in every case from its inception, and lack of virtue and chastity a complete defense to the case, even though the defendant has been guilty of all the acts and conduct that would otherwise render him guilty
of the offense. We think it clear that under the decisions of this court, the State can introduce evidence of the virtue and chastity of a woman in the original testimony, as it is an issue that the jury must find in favor of the State, or the defendant be entitled to an acquittal. Mr. Underhill in his work on Evidence, says:
"Sec. 392. Seduction is usually a statutory crime. It is often provided by statute that the female must have been chaste or virtuous, or of chaste character or repute previous to the intercourse with the accused. It is for the court to construe the meaning of these words in a statute. As a matter of law, every woman who has never been married and who is a virgin is chaste. The test is sexual intercourse. Whether the female is a virgin is always a question of fact for the jury. The evidence upon this question need not be direct. Positive evidence of an act of sexual intercourse with a man is of course conclusive evidence of unchastity. Physical unchastity may also be inferred from proof of indecent familiarities with men, or indecent language and conduct and, perhaps, from mere indiscretion and improper associations. All the previous acts, conduct and conversations of the woman are received to prove or disprove her chastity, if actual physical unchastity is not proved. And where actual chastity of the female is admitted, the moral and mental chastity of the female may be relevant to enable the jury to determine whether the woman, though physically chaste, was seduced, or whether the intercourse was indulged in by her for the purpose of gratifying her lascivious desires. The facts that the prosecutrix lived with her parents, relatives or guardians, moved in the society of respectable people, and was reputed to be chaste; went to church and to social gatherings, are always relevant to prove her actual chastity. It may always be shown that a witness had never heard her reputation for chastity called in question. The woman may testify to her own chastity, and may be cross-examined as to specific unchaste acts and conversations with men other than the defendant, whose names are given or whose names are unknown."
Mr. Bishop, in his New Criminal Procedure, says: Sec. 1106:
"In seduction, under a statute making it punishable to seduce a female of previously chaste character, the presumption of her chastity will not by the better doctrine sustain the averment of it as against a man for seducing her, because he is also presumed to be innocent, and the one presumption balances the other."
In the Am. Eng. Ency. of Law, page 240, the rule is thus stated:
"The numerical weight of authority undoubtedly supports the view that in a prosecution for seduction the chastity of the woman is presumed, and hence the burden of proof is upon the defendant to show her unchastity, in case he relies upon that to escape the consequences of his act. But there is also abundant authority for what would seem to be the more logical view; that while it is true that in ordinary cases the presumption is in favor of the chastity of a woman, still
where such chastity is an essential element of a criminal offense, as in the case of seduction, the legal presumption of the innocence of the defendant is sufficient to overcome the presumption of the chastity of the woman, and to require that her chastity, like any other element of the offense, should be proved by the prosecution in the first instance," citing People v. Wallace, 109 Cal. 611; State v. Lockerby, 50 Minn. 363, 36 Am. St. Rep., 656; State v. Wenz, 41 Minn. 196; State v. Horton, 100 N. Car., 443, 6 Am. St. Rep., 613; Harvey v. Territory,11 Okla. 156; West v. State, 1 Wis. 209; State v. McCaskey, 104 Mo., 644; State v. Eckler, 106 Mo., 585, 27 Am. St. Rep., 372; State v. Sharp, 132 Mo., 165; Zabriskie v. State, 43 N.J.L. 640, 39 Am. Rep., 610; Com. v. Walton, 2 Brews. (Pa.), 487; Oliver v. Com., 101 Pa. St., 215, 47 Am. St. Rep., 704. The better conclusion is that some evidence of the woman's good repute should be brought forward in the first instance. State v. Hill, 91 Mo., 423.
We are cited to page 1314 of Vol. 35 of Cyc., where it is held: "In an action by a female for her seduction, the presumption of law is in favor of her virtue. Evidence of her good character has been held to be inadmissible, unless her character is attacked by defendant." But by turning to this reference it will be seen the work at this time is discussing civil actions for damages, and that subject alone, and that on page 1329 of the same volume, is taken up the question of "Criminal Responsibility for Seduction," and in discussing this feature of the law on page 1344, the rule is thus stated:
"In some States it is held that in the absence of evidence to the contrary it is presumed that the female was of previous chaste character or virtuous at the time of the seduction, and that the burden of proving unchaste character or want of virtue is on the accused; but other courts hold that, while chastity is generally presumed, the innocence of the accused is also presumed, and require the State to show affirmatively that the female was of chaste character."
See also McCullar v. State, 36 Tex.Crim. Rep.; Walker v. State, 134 S.W. Rep., 516; Sharp v. State, 33 S.W. Rep., 795; Kerr v. State, 104 S.W. Rep., 809; Woodard v. State, 30 S.E.R., 522; Hummer v. State, 104 N.W.R., 722; Wade v. State, 50 Pac. Rep., 841; Night v. State, 119 Am. St. Rep., 58; Norton v. State, 48 Am. St. Rep., 538.
This particular point was recently, in effect, decided by this court adversely to the contention of appellant, in the case of Nash v. State, 61 Tex.Crim. Rep., 134 S.W. Rep., 709, but even if it was an original proposition the very nature of the elements of the offense renders this character of evidence admissible to support the allegations of the indictment. Under the authorities an unchaste woman is not the subject of seduction. The State must prove the alleged injured female was chaste, otherwise no offense is proven. To do this, her general reputation for chastity can be established as a fact
from which, with other proven facts, the jury may conclude the woman was chaste; and so the appellant could have met the charge by proof of a similar nature that the woman was not the subject of seduction. It is not a case where the law presumes anything in favor of any allegation in the indictment. The State is making a charge against an individual who is presumed to be innocent until every element of the offense with which he is charged has been established by competent evidence beyond a reasonable doubt. To sustain this charge three things must be established: (1) A promise to marry; (2) seduction; (3) carnal knowledge. Such being true, the evidence must affirmatively fill the measure of the meaning of these three elements, among which is the chastity of the alleged injured woman. And in order to prove the possession of a quality by a person it is universal that the general reputation relative to that quality is the only practical way by which this proof can be made. It may be and doubtless is true that this presumption of chastity, aided by her positive testimony, that she had never had carnal intercourse with any other person, would support a finding of the jury that she was chaste and virtuous; but this does not prevent the State from offering additional proof of this fact.
7. The next bill relates to the fact that the prosecuting witness was permitted to testify that she was engaged to appellant, the bill stating that this was but the opinion of the witness. This was admissible, as it is a statement of a fact, and if appellant desired to inquire into further details of what she termed an engagement to marry, he could have elicited it on cross-examination. Defendant also complains that the prosecuting witness was permitted to testify that she was pregnant and appellant was responsible for her pregnancy. This has been decided adversely to appellant. Merrill v. State, 70 S.W. Rep., 979. See also Snodgrass v. State, 36 Tex.Crim. Rep.; Davis v. State, 36 Tex.Crim. Rep..
8. Bill No. 10 is incomplete in that it does not attempt to set out any testimony of the witness, but refers to other parts of the record for the testimony of the witness. But if Miss Slaughter so testified, it would be admissible for the same reasons as stated in that part of this opinion admitting the testimony of Mrs. Mattie Goldsberry, as it relates to the same conversation.
9. In bill No. 11 it is stated that the county attorney in opening his argument stated to the jury that appellant had offered no evidence except some letters and the testimony of his mother. This was a statement of a fact, and we do not think it can be construed or contorted into a reference to defendant's failure to testify, and while the bill states that appellant submitted to the court a special charge instructing the jury not to consider such statement, yet the record before us contains no such special charge, and having failed to present a special charge, this would not present error. (Vann v. State,48 Tex. Crim. 11; Wright v. State, 37 Tex. Crim. 146; Arnold v. State, 38 Tex.Crim. Rep.; Combs v. State, 55 Tex.Crim. Rep..)
In the Combs case, last cited, in discussing a similar statement, it is said: "It is only by a strained construction that the above language can be construed as alluding to the failure of the defendant to testify, and in addition to this we have held that any bare allusion by the prosecuting attorney to the failure of a defendant to testify would not operate a reversal of the case."
In this instance we can not hold, as was said in the Combs case, that the language used was even an indirect reference to the failure of defendant to testify — it was a bare abstract statement of the evidence offered.
10. All the other bills in the record, except bill No. 27, relate to the charge of the court, and the failure to give certain special charges requested. In bill No. 27 it is alleged that the jury while in their retirement discussed the failure of the defendant to testify, and in the bill it is said that a portion of the jury was introduced on the motion for a new trial and so testified. If they did so testify there is no evidence of the fact brought before this court. In the first place, it is shown by the record that court adjourned on January 21, 1910, and this bill was not filed until March 16, about sixty days after the adjournment of court. Bills of this character must be filed during term time, and must contain the evidence offered in support of the motion. In the case of Probest v. State,60 Tex. Crim. 608, this court held:
"Among other grounds in the motion for new trial relied upon by appellant was the action of the jury in referring to and discussing his failure to testify. This matter was investigated by the court who heard the testimony touching same at length. The testimony in reference to this matter was filed in the court below on May 12, 1910. The term of court at which appellant was convicted adjourned on the 13th day of April, 1910. Since the decision of this court in the case of Black v. State,41 Tex. Crim. 185, it has been uniformly held that the provisions of our statutes, both civil and criminal, with regard to the preparation and filing of statement of facts for appeal, have reference only and exclusively to a state of facts adduced upon the merits of the case before the jury or the court, as the case may be, and that our statutes have no reference to issues of fact formed on grounds set up in motion for new trial, and that the facts as to such issues, in order to be entitled to consideration on appeal, must have been filed during the term. This rule has since been followed by this court in many cases. Mikel v. State, 43 Tex.Crim. Rep.; Tarleton v. State, 62 S.W. Rep., 748; Reinhard v. State, 52 Tex.Crim. Rep.; Jarrett v. State,55 Tex. Crim. 550; Williams v. State, 56 Tex. Crim. 225. It is clear, therefore, under this rule that this ground of appellant's motion is not, in this state of the record, available in this court."
Even had the bill contained the evidence, being filed after term time, it will be seen this ground of the motion could not be considered by this court, and it might be further stated that there are no affidavits in the record attached to the motion for a new trial as stated in the motion.
11. In six of the special charges requested, and in various grounds of the motion, the question is raised that the indictment having alleged that the offense occurred "on or about the 20th day of May, 1910, that the defendant could not be convicted for an offense committed, if at all, in January, 1909, and the court erred in instructing the jury that time was not the essence of an offense, and while the indictment alleged the offense to have been committed on or about May 20, 1910, yet if the defendant committed the offense as alleged within three years prior to the filing of the indictment, the allegation as to time would be met." The evidence in this case by the prosecuting witness shows that appellant had carnal intercourse with her about the date alleged in the indictment, but her testimony also shows that appellant had also had intercourse with her in January, 1909, and the court instructed the jury in connection with the paragraph that "time was not the essence of an offense," that "a woman can be seduced but once, and you can not convict the defendant for seduction in this case by reason of intercourse with her on May 20, if any he had, or by reason of any intercourse with her subsequent to the first act of copulation, if any there was, and any such subsequent acts of copulation, if any, after the first act of copulation, if any there was, can be considered by you only along with the other evidence in the case in passing upon the guilt or innocence of the defendant, of the offense charged, by reason of their first act of copulation, if any there was."
If the defendant was surprised by reason of the State introducing proof of an act of intercourse in January, 1909, and relying thereon to secure a conviction, he might have withdrawn his announcement of ready and moved to continue the case. Having failed to do so he can not now be heard to complain. Had appellant claimed surprise, and asked leave of the court to withdraw his announcement, and in the motion shown good reason why he was surprised, and that, by reason of such date being alleged he failed to have present any testimony material to his defense, doubtless the court would have granted him leave to withdraw his announcement. He made no such motion. And in the motion for a new trial, nor now does he state any reason why he was surprised, or that he was denied the privilege of obtaining any evidence necessary to his defense, or if a new trial was granted he could or would obtain any additional testimony tending to prove the falsity of the case as made by the State, or in any way be of aid to him in his defense. In Bryant v. State,35 Tex. Crim. 394, it is said, when surprised at the testimony a party must move to withdraw his announcement and ask for a
postponement or continuance so that he can meet the testimony. He can not proceed with the trial and urge such matter in his motion for a new trial. And in Mayfield v. State, 44 Tex. 59, it is held the party must make a showing that by a postponement or continuance proof can be obtained material to one's defense. See also Caldwell v. State, 28 Texas Crim. App., 566; Yanez v. State,20 Tex. 656; Cunningham v. State, 20 Texas Crim. App., 162; Creswell v. State, 14 Texas Crim. App., 1; Childs v. State, 10 Texas Crim. App., 183; Webb v. State, 9 Texas Crim. App., 490; Walker v. State, 7 Texas Crim. App., 245; art. 605 of the Code of Criminal Procedure.
By subdivision 6 of article 439 of the Code of Criminal Procedure it is provided: "The time mentioned (in the indictment) must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation." This court in Cudd v. State, 28 Tex. Crim. 124, holds: "The time when the offense was committed must be proved, but the exact date in the indictment need not be proven. All that is necessary is that the time of the commission of the offense be proved and that time proved be a date anterior to the presentment of the indictment, and not so remote as to show that the prosecution for the offense is barred by limitation." See also Arcia v. State, 28 Texas Crim. App., 198; Abrigo v. State, 29 Texas Crim. App., 143; Crass v. State, 30 Texas Crim. App., 480; Shuman v. State, 34 Tex.Crim. Rep.; Brewer v. State, 5 Texas Crim. App., 248.
The date proven in this case and relied on by the State was within the period of limitation as fixed by the statute. Neither do we think that the charge is contradictory in that it authorized a conviction for an offense committed within three years prior to the filing of the indictment, and also in instructing them that appellant could not be convicted for any act subsequent to the first act of copulation, if any there was. This was a plain statement that the act which they should consider would be the first act, and it must be within the period of limitation, and especially is this true when we consider that in the charge they are also instructed that any subsequent acts, after the first act, can only be considered for certain purposes, and that the special charge given at request of appellant fixes this first act as in January, 1909. Special charges Nos. 1, 2, 3, 4, 5 and 6 all relate to this matter, and the court did not err in not giving them.
12. Neither did the court err in refusing special charges Nos. 7, 8 and 9, as they are fully covered by the court's main charge in so far as they are applicable to the facts in this case.
13. Special charge No. 10 mentioned in the motion for a new trial is not in the record, and, of course, we can not consider it, as we do not know what it contains.
14. While in the motion for a new trial there is a ground stated that the court erred in overruling appellant's motion to require the
State to elect upon which act of intercourse the State would rely, if such a motion was filed, no bill of exceptions was reserved to the action of the court in overruling it, and the record being in this condition, we can not review same. However, in his charge the court did elect, and instructed the jury that a conviction could be had on the first act of intercourse alone, if any, and in giving defendant's special charge fixed this date as in January, 1909. So if the matter was presented to us in a way we could review it, no error would be shown.
15. In his motion for a new trial appellant complains that the court erred in the following paragraph of his charge: "You are instructed that the witness Annie Slaughter is an accomplice, and you can not convict the defendant upon her testimony, however true you may believe it to be, unless the same is corroborated by other evidence in the case besides her own. And the corroboration is not sufficient if it merely shows the commission of the offense, but it must go further and tend to connect the defendant with the commission of the offense." The only reason assigned is, "For the reasons as shown by defendant's bill of exceptions No. 32." There is no such bill in the record, and the motion for a new trial pointed out no errors, and there being no bill of exceptions, the allegation is too general to be considered by this court. Quintana v. State, 29 Texas Crim. App., 401; Holmes v. State, 55 Tex.Crim. Rep.; Duncan v. State,55 Tex. Crim. 168; Kubacak v. State, 59 Tex.Crim. Rep.; Joseph v. State, 59 Tex.Crim. Rep..
16. The term "seduction" is sufficiently defined, and when we take the charge as a whole it is not subject to criticism. It fairly and fully presents every issue in the case, and especially is this true when the court gave the following special charge at request of appellant:
"You are instructed in this case, in connection with the main charge of the court, that the prosecutrix, Annie Slaughter, is an accomplice to the commission of the offense charged, and before you would be authorized to convict upon her testimony, it is necessary for her to be corroborated by other evidence, independent of her, upon both the alleged promise of marriage and also the alleged act of sexual intercourse with the defendant; and you can not consider the acts, statements or declarations made by said Annie Slaughter subsequent to the first act of sexual intercourse, as corroborative of her testimony. In this connection you are further instructed that said corroboration is necessary to a legal conviction; even if you believe the testimony of prosecutrix, Annie Slaughter, to be true, still you can not convict unless you further find and believe that there is other testimony, outside of and independent of her own, tending to connect the defendant with the commission of the offense charged, and you are further instructed that the proof that the prosecutrix is now pregnant is not corroboration, such as is required by
law, that the defendant, either promised to marry prosecutrix, or that he had sexual intercourse with her in January, 1909."
However, if the charge was subject to some criticism, appellant has not presented the matter in a way we can review same in the exception to the charge as a whole. No errors are pointed out in the motion for a new trial, and the court states, in qualifying a bill, that when the court read the charge counsel for defendant excepted to the charge generally, but pointed out no error and gave no reason for such exception. No objections being urged or presented at the time the charge was read to the jury, and none being stated in the motion for a new trial, appellant can not after the adjournment of court complain of matters which were not called to the attention of the court by bill of exceptions at the time same was read, or in the motion for a new trial. The trial court at the time he acts on the motion for a new trial is entitled to know all the errors or supposed errors relied on by appellant. Quintana v. State, 29 Texas Crim. App., 401.
17. The only other ground in the motion not herein discussed relates to the sufficiency of the evidence to authorize a conviction. A synopsis of the testimony of the prosecuting witness has heretofore herein been presented. When it is remembered that the act of intercourse for which appellant is convicted was in January, 1909, and the record before us containing forty-three letters from appellant to the prosecuting witness written in 1908, which he addresses her in the most endearing terms, such as: "Annie, dear, I could hold you in my arms and gaze in your sweet face for no limit of time. You must take good care of yourself for the boy that loves you. Oh, dear, it is getting harder for me to tell you good-bye even when calling or anywhere else. I could be happy with you forever. I am sure I would never want to leave you for anything in the world. Sweetheart, if I could just see you now I expect I would love you almost to death." "My happiness all depends on you. I don't know how you have won my whole heart." "No, sweetheart, it can not be true that we are to be separated like this. I earnestly hope for a speedy day when you will be all mine," etc., it is not strange that the jury felt authorized to find that an engagement to marry existed as testified to by the prosecuting witness. And when it is recalled that the witness Rae Thompson testified that appellant told him: "He (appellant) had got Miss Annie Slaughter knocked up," it is not surprising that the jury felt authorized to find that she was corroborated as to the acts of sexual intercourse. The State, in its brief, summarizes as follows:
"To corroborate the testimony of the prosecutrix, the State introduced fifty-six letters written by appellant to her; the witness Tetts testified that appellant had bought two rings; the witness McClary that he had delivered to her a package containing a ring which appellant afterwards claimed; the witnesses Cupit, Nesse and Hicks, sheriff
and deputies, respectively, and Goldsberry, that appellant had fled about the time the prosecution had begun; the witness G.W. Slaughter that he was the father of the prosecutrix, and had informed appellant of the charge against him and had asked him to marry his daughter, and that appellant had agreed to give him an answer by a certain time, but failed to do so; the mother and aunt of prosecutrix that appellant after his arrest sought an interview with her and refused to have it in the presence of the aunt; the witness Alvis that appellant had boasted about his having had intercourse in the parlors of the town of San Augustine; the witness Dr. Davis that prosecutrix was pregnant; the witness Thompson that appellant said he was the author of the condition of the prosecutrix; the witness Phelps that appellant and prosecutrix spent the day near his house on a certain day; the witnesses Slaughter (father and mother) that appellant and prosecutrix are cousins and had frequently had opportunities to have had sexual intercourse the past three years, and was frequently at their home; the witness Downs that appellant and prosecutrix were together on the occasion when she says the engagement to marry occurred and had the opportunity to make the engagement; the witnesses Matthews, Thomas, Boren, Rankins and others that the prosecutrix had the reputation of being chaste until her pregnancy developed."
We think the evidence supports the judgment.
The judgment is affirmed.
Affirmed.