HARPER, Judge.
At the September term, 1914, the grand jury of Smith County returned an indictment against appellant, alleging that “on or about the 15th day of February, A. D. 1913, in Smith County, Texas, appellant did then and there unlawfully seduce Tempie Boberson, an unmarried woman under the age of twenty-five years, and did then and there obtain carnal knowledge of the said Tempie Boberson by means and in virtue of a promise of marriage to her, previously made by him.”
When the case was called for trial appellant, in addition to his plea of not guilty, filed a plea of former conviction. It appears that at the term of court preceding the one at which appellant was indicted, -the prosecuting witness, Tempie Roberson, and her mother and father, Victoria and W. T. Roberson, attended court to appear before the grand jury, but they were not permitted to go before the grand jury. Only
Mrs. Eoberson was called in, and she was immediately excused without being permitted to give any testimony. After the girl and her mother and father had remained all day, waiting to be called before the grand jury, Mr. Eoberson says the foreman told them, “You are excused for all time.” That none of them were permitted to go before the grand jury and give any testimony. Horace V. Davis, assistant county attorney of Smith County, testified: “I was a little bit vexed and did not like it very much because it seemed the grand jury would not have the witnesses before them;
that was a sort of log-rolling grand jury."
After that grand jury adjourned Mr. Davis took the affidavit of E. A. Tarbutton, in which it was charged that “on or about the 1st day of March, 1913, in the County of Smith and State of Texas, Bernice Staples, an unmarried man, did unlawfully have habitual carnal intercourse with Tempie Eoberson, an unmarried woman, without their living together, from said date above written, since and up to on or about the 1st day of July, 1913.”
On this complaint Mr. Davis filed an information on the 18th day of March, 1914. There is nothing in the record to show that appellant was ever arrested on this^ complaint and information, but Mr. Davis testified that appellant’s counsel requested him “not to send the officers after appellant, but to let him know when the complaint was filed and he would have appellant come down, and he thought appellant would settle it. Three days later, the record discloses, a plea of guilty was entered, and a fine of $50 assessed against appellant, he later sending a check to his attorney, who paid the fine and costs.
It is on this conviction for fornication appellant relies to sustain his plea of former conviction, and a bar to a prosecution for seduction.
Mr. Davis testified he was not present when the plea of guilty was entered or paid. The county judge, J. F. Odom, who, after testifying that he was county judge of Smith County at the time, says: “I was not in town at the time this plea of the defendant of guilty to the charge of fornication was entered. I made no promise whatever in connection with that plea of guilty to fornication. Hothing was said to me about any immunity in connection with it from further investigation of it; I never heard anything about that before. I never heard of that before.” The record is silent as to who accepted his plea of guilty and assessed this fine against appellant, but it is made clear by the record that no one authorized by law to accept a plea of guilty to this offense and assess the punishment did do so. The county judge, the only officer known to our law who was authorized to accept a plea of guilty and assess the punishment, swears most positively he did not do so. The defendant was not arrested, did not appear in court, and this entry and judgment is entered by someone (the record does not disclose who), who was not authorized in law to assess punishment in this character of case, and under such circumstances we do not think a plea of former jeopardy is sustained. In Ex parte Thompson, 57 Texas Crim. Rep., 437, it was held that a conviction at a term of court not
authorized by law is invalid, and must be treated as a nullity,—that the 'judgment is void. It follows that as the plea of guilty was entered at a time when the court was not in session; at a time when the judge of the court was absent, and the punishment fixed by a person (not disclosed) unauthorized by law to assess the punishment, the judgment entered is void and could not be a basis for the plea of former conviction, and the court did not err in so holding. It has always been held that a plea of guilty could not be received or entered when the court was not in session, and the Legislature, that pleas of guilty might be accepted at other times than a regular term of the court, by Act of the Twenty-second Legislature, approved April 21, 1891, authorized County Courts to hold special terms to receive pleas of guilty. But in this instance the court was not in session, either in regular or special term; the judge was not even in the courthouse, much less in the courtroom, and he did not accept the plea of guilty nor assess the punishment. Ex parte Jones, 46 Texas Crim. Rep., 433.
But in case the court had been in session either in regular or special term, the county judge present, and the plea of guilty regularly entered by his attorney, would the conviction for fornication bar a prosecution for seduction under the facts in this case? The indictment alleges that the offense of seduction was committed on or about the 15th day of February, 1913. Miss Tempie Roberson testified that the first act of intercourse took .place on or about the loth day of February—somewhere along in February. She testified that after this first act of intercourse, the acts of intercourse continued along all during the year up until about the last of July—that he had intercourse with her every two or three days (on every suitable occasion) until defendant went to his mother’s, which occurred about the first of August. Seduction is constituted by one single act of intercourse under a promise of marriage, and it must be based upon the first act of intercourse. Ho matter how many acts may be testified to, if the injured female was not a virgin when the first act occurred with the person charged with the offense, under our decisions no conviction could be had, nor could the prosecution be based upon any other than the first act. If when the firsts act occurred the prosecution should not be begun until three years thereafter, the offense of seduction would be barred, even though he had continued to have intercourse with the girl -during all the time, even up to the .day of the filing of the indictment. Simons v. State, 54 Texas Crim. Rep., 619. The offense of seduction was a completed offense when the first act of intercourse took place, if the female was induced to submit her person to appellant under a promise of marriage brought about by protestations of love and affection and his conduct.
The information charging fornication alleges the offense to have been committed by appellant by having habitual carnal intercourse with Tempie Boberson. One act of intercourse would not authorize a conviction under such an information—the State was required to show that it was a habit of appellant to have intercourse with the female
whenever suitable opportunity was afforded. As said in Hilton v. State, 41 Texas Crim.
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HARPER, Judge.
At the September term, 1914, the grand jury of Smith County returned an indictment against appellant, alleging that “on or about the 15th day of February, A. D. 1913, in Smith County, Texas, appellant did then and there unlawfully seduce Tempie Boberson, an unmarried woman under the age of twenty-five years, and did then and there obtain carnal knowledge of the said Tempie Boberson by means and in virtue of a promise of marriage to her, previously made by him.”
When the case was called for trial appellant, in addition to his plea of not guilty, filed a plea of former conviction. It appears that at the term of court preceding the one at which appellant was indicted, -the prosecuting witness, Tempie Roberson, and her mother and father, Victoria and W. T. Roberson, attended court to appear before the grand jury, but they were not permitted to go before the grand jury. Only
Mrs. Eoberson was called in, and she was immediately excused without being permitted to give any testimony. After the girl and her mother and father had remained all day, waiting to be called before the grand jury, Mr. Eoberson says the foreman told them, “You are excused for all time.” That none of them were permitted to go before the grand jury and give any testimony. Horace V. Davis, assistant county attorney of Smith County, testified: “I was a little bit vexed and did not like it very much because it seemed the grand jury would not have the witnesses before them;
that was a sort of log-rolling grand jury."
After that grand jury adjourned Mr. Davis took the affidavit of E. A. Tarbutton, in which it was charged that “on or about the 1st day of March, 1913, in the County of Smith and State of Texas, Bernice Staples, an unmarried man, did unlawfully have habitual carnal intercourse with Tempie Eoberson, an unmarried woman, without their living together, from said date above written, since and up to on or about the 1st day of July, 1913.”
On this complaint Mr. Davis filed an information on the 18th day of March, 1914. There is nothing in the record to show that appellant was ever arrested on this^ complaint and information, but Mr. Davis testified that appellant’s counsel requested him “not to send the officers after appellant, but to let him know when the complaint was filed and he would have appellant come down, and he thought appellant would settle it. Three days later, the record discloses, a plea of guilty was entered, and a fine of $50 assessed against appellant, he later sending a check to his attorney, who paid the fine and costs.
It is on this conviction for fornication appellant relies to sustain his plea of former conviction, and a bar to a prosecution for seduction.
Mr. Davis testified he was not present when the plea of guilty was entered or paid. The county judge, J. F. Odom, who, after testifying that he was county judge of Smith County at the time, says: “I was not in town at the time this plea of the defendant of guilty to the charge of fornication was entered. I made no promise whatever in connection with that plea of guilty to fornication. Hothing was said to me about any immunity in connection with it from further investigation of it; I never heard anything about that before. I never heard of that before.” The record is silent as to who accepted his plea of guilty and assessed this fine against appellant, but it is made clear by the record that no one authorized by law to accept a plea of guilty to this offense and assess the punishment did do so. The county judge, the only officer known to our law who was authorized to accept a plea of guilty and assess the punishment, swears most positively he did not do so. The defendant was not arrested, did not appear in court, and this entry and judgment is entered by someone (the record does not disclose who), who was not authorized in law to assess punishment in this character of case, and under such circumstances we do not think a plea of former jeopardy is sustained. In Ex parte Thompson, 57 Texas Crim. Rep., 437, it was held that a conviction at a term of court not
authorized by law is invalid, and must be treated as a nullity,—that the 'judgment is void. It follows that as the plea of guilty was entered at a time when the court was not in session; at a time when the judge of the court was absent, and the punishment fixed by a person (not disclosed) unauthorized by law to assess the punishment, the judgment entered is void and could not be a basis for the plea of former conviction, and the court did not err in so holding. It has always been held that a plea of guilty could not be received or entered when the court was not in session, and the Legislature, that pleas of guilty might be accepted at other times than a regular term of the court, by Act of the Twenty-second Legislature, approved April 21, 1891, authorized County Courts to hold special terms to receive pleas of guilty. But in this instance the court was not in session, either in regular or special term; the judge was not even in the courthouse, much less in the courtroom, and he did not accept the plea of guilty nor assess the punishment. Ex parte Jones, 46 Texas Crim. Rep., 433.
But in case the court had been in session either in regular or special term, the county judge present, and the plea of guilty regularly entered by his attorney, would the conviction for fornication bar a prosecution for seduction under the facts in this case? The indictment alleges that the offense of seduction was committed on or about the 15th day of February, 1913. Miss Tempie Roberson testified that the first act of intercourse took .place on or about the loth day of February—somewhere along in February. She testified that after this first act of intercourse, the acts of intercourse continued along all during the year up until about the last of July—that he had intercourse with her every two or three days (on every suitable occasion) until defendant went to his mother’s, which occurred about the first of August. Seduction is constituted by one single act of intercourse under a promise of marriage, and it must be based upon the first act of intercourse. Ho matter how many acts may be testified to, if the injured female was not a virgin when the first act occurred with the person charged with the offense, under our decisions no conviction could be had, nor could the prosecution be based upon any other than the first act. If when the firsts act occurred the prosecution should not be begun until three years thereafter, the offense of seduction would be barred, even though he had continued to have intercourse with the girl -during all the time, even up to the .day of the filing of the indictment. Simons v. State, 54 Texas Crim. Rep., 619. The offense of seduction was a completed offense when the first act of intercourse took place, if the female was induced to submit her person to appellant under a promise of marriage brought about by protestations of love and affection and his conduct.
The information charging fornication alleges the offense to have been committed by appellant by having habitual carnal intercourse with Tempie Boberson. One act of intercourse would not authorize a conviction under such an information—the State was required to show that it was a habit of appellant to have intercourse with the female
whenever suitable opportunity was afforded. As said in Hilton v. State, 41 Texas Crim. Rep., 190, an occasional act is not sufficient to show “habitual” intercourse, much less one act. Hnder the testimony of Miss Roberson there could be no doubt of appellant committing the offense of seduction, and under the testimony of both Miss Roberson and appellant that he thereafter committed the offense of fornication. There is in this record no dispute about the question of habitual carnal intercourse, for both appellant and Miss Roberson so testify. The only dispute is as to whether or not the first act was obtained under and by virtue of an engagement to marry—Miss Roberson affirms it was so obtained—this appellant denies. And as the evidence offered in behalf of the State would show that appellant first committed the offense of seduction by having an act of intercourse induced and brought about under a promise to marry the girl, and the testimony of both the State and defendant would show that thereafter the offense of fornication was committed by appellant by having habitual carnal knowledge of the girl, we are at a loss to understand how it can be seriously contended that he could not be prosecuted and convicted of both offenses. It is not a carving of an offense out of one transaction. According to both the witnesses for the State and for the defendant, even according to the defendant himself, there must have been some twenty-five or thirty or more transactions between them. It was a matter of almost daily occurrence while the appellant was boarding at the home of the father of the prosecuting witness.
•We entirely agree with the contention that if there is but one transaction, the State can cut or carve but once, and having been prosecuted and convicted of the offense carved out of the transaction, there can be no further prosecution for the transaction out' of which the offense was cut or carved. But we do not understand how anyone can contend that the evidence in this ease shows but one transaction. The transactions were almost numberless. If A goes to the house of B and steals therefrom at the same time two watches, one belonging to B and one to 0, one conviction for theft of the watch of B would bar a prosecution for the theft of the watch of C. But if A on one trip steals the watch of B, and then makes a second trip and steals the watch of O, he can be prosecuted and convicted for the theft of both watches, and a conviction for theft of the watch of B would not bar a prosecution for the theft of the watch of 0, although stolen from the same house and from the same place in the house, there being two transactions, the thefts having occurred at different times. So in this case the acts of intercourse having extended from February to August; occurring every two or three days at different times and places, can not be said to constitute 'but one transaction, and that a prosecution for seduction, which was a completed offense when the first act of intercourse took place, would bar a prosecution for fornication based on the subsequent acts, nor will a conviction for fornication under such state of facts bar a prosecution for seduction. If there was but
one act of
intercourse, and a prosecution for fornication thereunder, alleging
a living together, and a conviction had, we could readily see how it could be contended it would bar a prosecution for seduction based on the
same act
of intercourse. In that sort of case it might well be contended that the State had carved an offense out of the single transaction, and should not be allowed to carve again. But under the evidence in this case we have no such case. The information for fornication alleged habitual carnal ihtercourse, and the proof of one act of-intercourse alone, whether under promise of marriage or not, would not authorize nor sustain a conviction under such an information, while under the charge of seduction proof of one act under a promise of marriage will justify and sustain a conviction. Under the evidence offered in behalf of the State appellant committed both offenses at separate and distinct times, and the court did not err in withdrawing the plea from the consideration of the jury. This question is discussed at length by the Supreme Court in Thomas v. State, 40 Texas, 36, and by this court in Lewis v. State, 1 Texas Crim. App., 323; Whitford v. State, 24 Texas Crim. App., 489; Nichols v. State, 37 Texas Crim. Rep., 616; Burns v. State, 36 Texas Crim. Rep., 601; Taylor v. State, 41 Texas Crim. Rep., 564; Ford v. State, 56 S. W. Rep., 918; Harris v. State, 50 Texas Crim. Rep., 411; Parks v. State, 57 Texas Crim. Rep., 569.
We do not think this question is raised in the record in a way to authorize us to review it, as there is no bill of exceptions in the record. It is true, there is a paper in the record, in which it is alleged that certain objections were made to the charge of the court, but this paper is verified in no way, and does not bear the signature of the trial judge, nor is there any verification that it was ever submitted to the trial judge. In the case of Ross v. State, 75 Texas Crim. Rep., 59, 170 S. W. Rep., 306, this court held:
“There is what is termed in this record ‘defendant’s exceptions to the charge of the court.’ This is not verified in any way. The trial judge’s name is not appended thereto, nor is it in any manner approved in a way so as to make it properly a record paper. It is true that the file marks of the clerk appear thereon and show this paper was filed May 16, 1914, the same date the court’s charge was filed; but this does not evidence the fact that it was presented to the trial judge before his charge was read to the jury, or that it was ever presented to the trial judge. The radical changes made by the Thirty-third Legislature (chapter 59) in regard to these matters has been frequently before our civil courts, and in each and every instance, so far as we have been able to ascertain, the holding has been that the fact that the objections were made before the charge was read to the jury must be evidenced by a bill of exceptions approved by the trial judge. Eldridge v. Citizens Ry. Co., 169 S. W. Rep., 375; Heath v. Huffhines, 168 S. W. Rep., 974; Gulf, T. & W. Ry. Co. v. Culver, 168 S. W. Rep., 514; Ford Motor Co. v. Freeman et al., 168 S. W. Rep., 80; Southwestern Ry. Co. v. Wadsack, 166 S. W. Rep., 42; Saunders v. Thut, 165 S. W. Rep., 553; Johnson v. Hoover & Lyons, 165 S. W. Rep., 900; Quanah A. & P. Ry. Co. v. Galloway, 165 S. W. Rep., 546. Other cases from our civil courts
construing these amendatory Acts could be cited, but as the cases above quoted discuss the matter fully from every viewpoint we deem it unnecessary to cite others. It appears that not only must objection in writing be made to the charge before it is read to the jury, but if the court overrules the objections a bill of exceptions must be reserved to the action of the court and be incorporated in the record.”
[Rehearing denied March 31, 1915.—Reporter.]
Appellant, to obviate the force of this objection, contends that as the order overruling the motion for a new trial shows that he excepted to the action of the court in overruling his motion for a new trial, that this exception should be sufficient to cause us to review each ground alleged in the motion for a new trial, although the record contains no bill of exceptions to the evidence introduced, to the charge as given, or the refusal of the court to give any special instruction requested. An exception recorded in the order overruling the motion for a new trial only verifies the fact that the motion was presented to the court and overruled by him, and that appellant excepted to that action of the Court, but does not verify any ground alleged in the motion, and that the appellant on the trial of the case excepted to any ruling or order of the court. Marshall v. State, 5 Texas Crim. App., 273; McDaniel v. State, 5 Texas Crim. App., 475; Yonez v. State, 6 Texas Crim. App., 429. However, we have gone entirely through the record; the court gave six of the special charges requested by appellant, and if there were any omissions in the main charge gs given, the special charges requested and given certainly cover such omissions, and present affirmatively the defenses relied on by appellant.
The judgment is affirmed.
Affirmed.