author: DAVIDSON, J. HARPER, J. PRENDERGAST, P. J. PRENDERGAST, P. J., and HARPER, J. DAVIDSON, J.

text:
    GILLESPIE v. STATE.
    (No. 2800.)
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.
    On Motion for Rehearing, March 18, 1914.
    Dissenting Opinion, April 23, 1914.)
    1. Seduction (§ 50) — Promise of Marriage —Conditions—Evidence—Instructions.
    In a prosecution for seduction under promise of marriage, evidence held to require a finding that the promise of marriage by which prosecutrix was induced to yield her person on the first occasion was not conditioned on her becoming pregnant from the intercourse, so that the court did not err in refusing to submit the question of such alleged conditional promise.
    [Ed. Note. — For other eases, see Seduction, Cent. Dig. §§ 89-92; Dee. Dig. § 50.]
    2. Seduction (§ 50) — Instruction— Corroboration of Accomplice.
    In a prosecution for seduction, the court charged that prosecutrix was an accomplice, and that defendant could not be convicted on her testimony alone, unless the jury believed her testimony was true, and it showed that the defendant was guilty of the offense charged in -the indictment, and not even then unless the jury further believed there was further testimony in the ease corroborative of her testimony, tending to connect defendant with the offense charged; that corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect defendant with its commission, and then, from all the evidehee, the jury must believe, beyond a reasonable doubt, that defendant is guilty, but that the corroborative evidence need not be direct and positive, independent of prosecutrix’s testimony, but proof of such facts and circumstances as tend to support her testimony, and would satisfy the jury that she is worthy of credit as to the facts essential to constitute the offense of seduction, and which tend to connect defendant with the commission df the offense, will fulfill the requirements, as it is for the jury to say, from all the facts and cir-eumstances in evidence, whether she had been sufficiently corroborated. Held, that such instruction properly stated the law, and could not lead the jury to believe that the burden of proof was not on the state to corroborate prose-cutrix.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.]
    3. Criminal Law (§ 511) -r- Accomplice’s Testimony — Corroboration.
    Testimony may be sufficient to corroborate an accomplice, though it is not of itself sufficient to show defendant’s guilt, exclusive of the accomplice’s testimony.
    [Ed. Note. — For other cases, see Criminal Law. Cent Dig. §§ 1128-1137; Dec. Dig. § 511.]
    4. Seduction (§ 46) — Testimony of Prose-cutrix-Corroboration — Evidence.
    In a prosecution for seduction under promise of marriage, evidence of defendant’s conduct toward her both prior and subsequent to the alleged seduction held sufficient to corroborate her testimony that she yielded to him solely because she loved him, and he loved her, and had promised to marry her.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.]
    5.. Criminal Law (§ 829) — Trial—Recjuest- , ed Charge — Instructions Given.
    It is not error to refuse a requested charge substantially covered by instructions given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee.Dig. § 829.]
    6. Criminal Law (§ 811) — Instructions — Requested Charge — Particular Facts.
    A requested charge that the jury should not find that there was a promise of marriage on the testimony of prosecutrix alone, but under the law her evidence as to the promise of marriage under which she claims she has been seduced must be corroborated (i. e., confirmed by direct and positive testimony, or by circumstances of such character as to convince the jury beyond a reasonable doubt that her testimony in that respect is true), was properly refused as singling out a particular fact and attempting to charge thereon. ,
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dec. Dig. § 811.]
    7. Seduction (§ 46) — Prosecutrix—Corrob-oration.
    In a prosecution for seduction under promise of marriage, it. is not necessary that the seduced woman be corroborated in each and every particular of the elements' necessary to constitute the offense.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.]
    8. ’Seduction (§ 42) — Evidence—Character of Prosecutrix.
    Where, in a prosecution for seduction under promise of marriage, prosecutrix’s reputation for chastity became an issue, evidence that on one occasion, during the time in question, she had a difficulty with a young man in a church and called him “a damn son of a bitch” was admissible.
    [Ed. Notei — For other cases, see Seduction, Cent. Dig. §§ 73-75; Dec. Dig. § 42.]
    9. Criminal Law (§ 361) — Evidence—Letters — Intent.
    Where, in a prosecution for seduction under promise.of marriage, defendant swore that he received a letter from prosecutrix, while he was absent in Colorado, soliciting him to return because she suspected she was pregnant, and on his return that she told him the reason why she wrote the letter, she was entitled to testify as to the reason why she desired him to return.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802, 803; Dec. Dig. § 361.]
    10. Criminal Law (§ 1109) — Appeal—Bill of Exceptions — Modification.
    Appellant having accepted a bill of exceptions as modified by the court, he is bound by the modification.
    [Ed; Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2897, 2898, 2900, 2902, 3204; Dec. Dig. § 1109.]
    11. Seduction (§ 40) — Evidence — Relevancy.
    In a prosecution for seduction under prom-ise of marriage, evidence that prosecutrix’s mother had been long dead at the time of the seduction was admissible.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dec. Dig. § 40.]
    12. Criminal Law (§§ 419, 420) — Evidence-Hearsay.
    Where, in a prosecution for seduction under promise of marriage, it was shown that on one occasion O. was seen in prosecutrix’s company by certain others, evidence that on the next day he requested those who saw him never to say anything about having seen him with prosecutrix the night before was hearsay and inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    Davidson, J., dissenting.
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Jeff Gillespie was convicted of seduction under, promise of marriage, and he appeals.
    Affirmed on rehearing.
    Woods & Morrow, of Kaufman, Nelms & Puekitt, of Dallas, Fred S. Rogers, of Kaufman, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   DAVIDSON, J.

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

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

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

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

The court in a general way gave the jury a definition of seduction. Applying the law to the case, the jury was informed that if they should find from the evidence that appellant, “by a promise to marry her, made by him to Lela Heffington, did seduce and obtain carnal knowledge of her, and that she was at the time a chaste and unmarried female under the age of 25 years, and that she yielded her person to and had carnal intercourse with the defendant by reason of a promise .of marriage made by him to her, on which she relied,” then he would be guilty. He also charged the prosecutrix would be an accomplice, and that the corroboration would not be sufficient if it merely shows the commission of the offense charged, but it must tend to connect the defendant with its commission, and then from all the evidence, the jury must believe, beyond a reasonable doubt, the defendant is guilty. He then charged them that it was not necessary that the evidence be positive and direct; that she could be corroborated by circumstances which tended to .connect the defendant with the commission of the offense charged. Then he gave this clause in the charge: “It is for you to say, from all the facts and circumstances in evidence before you, whether she has been sufficiently corroborated, and, if you find there is an absence of such corroborative testimony, you must acquit the defendant.” We notice this clause in passing, because of further matters suggested in connection with the court’s charge and refusal to give special instructions. We desire to say that it hardly states the rule correctly to say it is for the jury to say from the facts and circumstances that she has been corroborated; the corroboration must tend to connect defendant with the offense, nor is it correct to require the jury to find there was an absence of corroboration in order to acquit. This changes the burden of proof and requires the jury, before they can acquit, to find an absence of corroboration. The rule is that she must be corroborated, and, unless she is so corroborated, the jury will acquit. It is not the absence of corroboration which requires acquittal, but it is the presence of corroboration that authorizes a conviction ; and, unless she is corroborated, the state has no legal case. Under this rule laid down by the court, the jury could not acquit, unless they should find that there was an absence of corroboration. The rule is the reverse, that the state must show the corroboration in order to get a verdict.

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

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

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

Another bill recites that the prosecutrix was called back by the county attorney, and the following matters occurred: She was asked by the county attorney: “You told Mr. Woods this morning that you wrote to him (Jeff) to come back; tell the jury why you did that.”- Appellant excepted for various and sundry reasons, among others, that it was not proper to state why she wrote for him to return, unless the defendant knew of her reason; that he could not know of those reasons unless he had been informed. The court stated in the presence of the jury: “I do not know whether that is admissible or not. There is no way for me to know what the answer of the witness would be. If you gentlemen would indicate to me about it — ” Counsel approached the court while on the bench, and they consulted privately. Counsel for both sides then returned to their places at the bar in front of the jury, and the following question was propounded by the county attorney: “Tell the jury why you wrote him to come back?” Mr. Woods, counsel for defendant, excepted because the letter would be the best evidence, and because her feelings and her education on the subject since this suit was .begun would be in the nature of manufactured testimony. The court stated, “Very well;” and Mr. Woods excepted to the question and the answer. Mr. Puck-itt, for the defendant, remarked: “We want to get our bill of exception this way; the letter would be the best evidence; any reason she had of her own, not expressed to defendant, would not be binding on the defendant, and would be prejudicial, immaterial, irrelevant, and hearsay.” And the court’s answer was, “All right.” The county attorney asked: “Tell the jury why you wrote him to come back?” The witness answered: “I was uneasy.” The county attorney further propounded this question: “Why were you uneasy?” And the witness, Lela Heffington, proceeded to answer: “I had missed my sickness four or five days, and I was uneasy and wrote to him to come back.” Various objections were urged to this, that it was immaterial, irrelevant, and had a tendency to prejudice the jury against defendant’s rights, etd-We are of opinion this testimony was not admissible, unless it was shown defendant received the letter, and that he was notified in some way of her reasons for wanting him to come bach. Her undisclosed reasons would not affect the defendant, and could not be binding on him. Upon another trial, unless these matters are shown in some way to have been brought to the attention of the defendant, they would not be admissible.

Another bill recites that state’s counsel asked prosecutrix, while on the stand as a witness for the state, if she.told her mother. Counsel for defendant then said, “We asked her who she told, and she gave one party, Mrs. Wilsonand the court remarked from the bench, “Go on and complete your question, Mr. Terry, and I will rule on it then.” Whereupon Mr. Terry asked: “Want to ask you if your own mother was living?” Counsel for defendant objected to said question and manner of examining the witness as being irrelevant and immaterial and prejudicial to defendant’s rights. These matters were overruled by the court, and the witness answered “in a grave and solemn manner of an actress, with tears in her eyes, before the jury, with her head hung down, meaning that her mother was not living at the time when this transaction took place.” The mother of prosecutrix had been dead for years, and this question was not germane to what had been asked by defendant. His question was if she had told anybody, and she specified the only one told was Mrs. Wilson. It was not necessary, to an explanation of this question or answer, that she had or had not told her mother; it was not germane to this question that her mother was dead, and therefore that she had not told her, especially in view of the fact that she had been dead quite a number of years. The evidence shows that the girl was over 20 years of age, and had a stepmother. Under the Kearse Case, 151 S. W. 827, this evidence seems to be admissible.

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

Por the reasons indicated, the judgment is reversed, and the cause remanded.

HARPER, J.

I concur in the reversal of the case, but do not think there is any error in the court’s charge on corroboration of the witness, as it is clearly within the rule, in my opinion, announced in the case of Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006, but the charge of the court was erroneous in not presenting the issue of whether or not she relied on a conditional promise, that if she became pregnant he would marry her.

PRENDERGAST, P. J.

I agree with Judge HARPER.

On Motion for Rehearing.

PRENDERGAST, P. J., and HARPER, J.

The state has filed a motion for rehearing herein. Appellant has filed a vigorous argument and brief resisting this. We have again reviewed the record and the questions raised and passed upon in the original opinion, and are satisfied that mistakes were made in the original opinion and in reversing and remanding this cause. We will therefore, in this opinion, again discuss and decide these various questions.

In the original opinion it was correctly held that there was no error in the court’s action in calling a special term of the court. A properly certified copy of the indictment has been furnished this court and filed herein, showing that the indictment concluded properly “against the peace and dignity of the state,” and that the omission of these words, in attempting to copy the indictment originally in the transcript, was a mistake.

The alleged seduced girl is named Lela Heffington, Appellant’s name is Jeff Gillespie. She testified appellant began to keep company with her in May, 1908. “He did not commence going with- me regularly until the last of June or July, 1908. He commenced to talk love to me that summer in July, and he continued to go with me until he went away to school in September, 1908. From July to September' of 1908 he called on me very often, once or twice a week. * * * Defendant and I became engaged to be married the last of August, 1908. We were to be married the next fall.” He said: “I saw her real often until 1908. In 1908 I went to the Alexander Collegiate Institute at Jacksonville to study a literary course. * * * I first began going with her regularly, or a good deal, in 1909.”’ It was shown by both of them that he started to this school in September, 1908, and attended it only some two or three months. She testified that at his solicitation and upon his professions of love for her they became engaged to be married in August, 1908. She said she loved him and thought he loved her. Such were his professions; that she trusted him and believed in him. Not only her testimony, but that of various other witnesses, shows that he was more attentive to her and took her back and forth to all of the social functions and to church and ■ Sunday school in the neighborhood where they both lived from the latter part of the summer of 1908, until the fall of 1910, when it generally became known in their neighborhood that she was pregnant. It is true that other young gentlemen, during this time, from time to time occasionally waited upon her and accompanied her back and forth to these various functions, but none of them are shown to have been with her anything like as frequently or as continuously as appellant. Their going with her and waiting upon her occurred more particularly when he was away from her at school in 1908, and in the.early spring of 1910, while he was absent in Colorado.

In the original opinion it was stated: “Some time in 1910, she says, the first act (of sexual intercourse) occurred.” This statement, is a mistake. The statement of facts, in giving her testimony, shows that she positively and unequivocally testified again and again that the first act of sexual intercourse between them occurred in February, 1909. He swore positively to the same thing. Nowhere in the statement of facts does either of them testify that the first act occurred in 1910. This mistake in the original opinion occasioned another mistake therein to the effect that she stated in substance that when this first act occurred he told her if she became pregnant or anything happened he would immediately marry her and too quick for it to be known. The whole of her testimony, without doubt, was that whatever talk was had between, them about her pregnancy, or his marrying her because thereof, occurred in the spring of 1910, and not when the first act occurred, and that this talk was more than a year after he had seduced and debauched her. Her testimony, taken as a whole, as stated above, not only clearly shows that no such talk occurred between them-when he first had sexual intercourse with her, but, on the contrary, excludes any such idea, and clearly shows that all such talk between them about marrying her in case she became pregnant occurred in 1910, and not before. Appellant did not dispute her in. his testimony. So that this mistake, having been made in the original opinion, was followed up by sustaining appellant’s contention that the court should have submitted in his charge the question of her yielding to him and he agreeing to marry her on condition that he got her pregnant. The evidence in no way raised such question, and the court clearly did not err in not submitting it.

Her testimony in chief shows that after he returned from school at Jacksonville in November, 1908, he was with her frequently until February, 1909; that there was no difference in his attentions to her after his return and his attentions before then. “He seemed just the same that he had been.” That about two weeks, a short time, before this first act of intercourse, in taking her back home from church, he first solicited her to extend to him sexual favors. She declined and told him, “I could not do thatthat she-was not willing. He said he did not see why ; that, if she had any confidence in him, he had promised to marry her, and he did not see why she could not trust him; that on the next, occasion, some two weeks later, when he talked to her about it and asked her to yield to him, she said: “I did not want to; he just insisted upon the ground that we were going to marry, and, if I loved him, why not then; that it (would) never be known and would, be no harm anyway. We talked about the-matter most all the way from there and back from the party. I finally yielded to him on that occasion; I did because I believed him. and believed that he intended to marry (me) and loved him, and under that grounds I did, and no other reason.” Unquestionably, by both her testimony and that of appellant, too, this first act occurred in February, 1909. She reiterated this in her cross-examination-distinctly and pointedly. Further, on cross-examination, she testified that from time-to time after this first act when they had sexual-intercourse, and practically every time they did, he promised to marry her or renewed or reiterated his promise of marriage. The statement of facts shows part of her testimony on cross-examination as follows: “When I yielded to defendant he said that we would marry. He said we would marry before anything like that happened; he said if there-was anything of that sort that he would marry ; he said that we were going to marry and there would nothing like that happen before it. He told me that he would marry me if I became pregnant but not then. It was in 1910' that he told me he would marry me if I became pregnant. It was after he came home from the West. Q. Did he make a solemn promise to you, Miss Lela, to marry you if you became pregnant? Did you believe that he would? A. Yes, sir. Q. Was that the reason then that you yielded to him — you relied on that promise, did you? A. Yes, sir; long before 1910. Q. Well, did you rely on it then? A. Yes, if I hadn’t believed what he was saying I would not. Q. You believed that he would marry you if you became pregnant, didn’t you? A. I believed that he was going to marry me anyhow. Q. Well, if you became pregnant, didn’t you believe that he was going to marry you? A. Sure. Q. Did you believe that that would hurry up the wedding? A. No sir.” After this testimony by her, on re-examination by the state, on this point she clearly and distinctly testified: “I yielded to defendant the first time because I believed he was true and believed that he loved me. I knew that I loved him. I believed that he would marry me, and he had promised to, and under them reasons I .submitted. At the times I submitted after that he said it would never be known; he said we could marry too quick for anything like that to ever interfere. The first conversation I had with defendant about the possibility or probability of my becoming pregnant was after he returned from the West, after I had written him the letter, and what I have just stated is what defendant said in ■connection with that conversation.”

Appellant objected to the state re-examining her after his long severe cross-examination of her and when the questions and answers above quoted occurred, because her testimony thereon would be a mere repetition, and took a bill thereto on that ground. In qualifying that bill, which was accepted by appellant and is in the record and presented by him as one of the claimed grounds of error in this cause, the court said: “The foregoing bill, in the shape which it is presented, is so incomplete that it cannot be approved in its present form, and, to make the matter plain to the higher court, it will be necessary to incorporate the entire cross-examination of the witness Lela Heffington upon the point involved in this bill. After a long and exhaustive cross-examination of the prosecuting witness, extending over 26 pages of stenographic question and answer report, an inquiry into the minutest detail of every movement of this witness, the following cross-examination was continued: ‘Q. When you yielded to Jeff Gillespie, didn’t he tell you that if anything got the matter with you that he would see you out? A. No, he said that he would marry. Q. Ma’am? A. No, sir; he said he would marry before anything like that. Q. He said if there was anything of that sort he would marry— Mr. Wynne: No. Mr. Puckitt: We will fix that; ask her what she said. Q. What did you say? A. He said that we were going to marry, and there would nothing like that happen before it. Q. Didn’t he tell you that he would marry you if you became pregnant? A. Yes, sir; he did, but not then. Q. When was it he told you that he would marry you if you became pregnant? A. In 1910. Q. What time? A. It was after he came home from west Texas. Q. Did he make a solemn promise- to you, Miss Lela, to marry you if you became pregnant? Did you believe that he would? A. Yes, sir. Q. Was that the reason then that you yielded to him, you relied on that promise, did you? A. Yes, sir; long before 1910. Q. Well, did you rely on it then? A. Yes, if I hadn’t believed what he was saying I would not. Q. You believed that he would marry you if you became pregnant, didn’t you? A. I believed that he was going to marry me anyhow. Q. Well, if you became pregnant, didn’t you believe that he was going to marry you ? A. Sure. Q. Did you believe that that would hurry up the wedding? A. No, sir. Q. You did not think that would hurry up the wedding at all? A. No; I thought that we were going to marry; I never thought anything of that. Q. You say it commenced in 1909 and just kept on until 1910, over a year; how many different times were you going to marry? A. Well, we were to marry in 1909, and his trip West prolonged it, and then we each agreed not to marry when he came back. Q. You each agreed that you would not marry? A. We said we would wait a while. Q. Didn’t you break up at that time? A. No, sir. Q. Didn’t you postpone it indefinitely or to some fixed time, or what did you do, after he came back? A. We just agreed that we would wait a while and see what he could do. Q. You did not have any fixed time, then, just the exact day when you would marry, did you? A. No, sir. Q. Did you have a fixed day at any time that you and Jeff Gillespie would marry, when he was having this intercourse with you? A. No, sir; we did not have no day. ' Q. Did nbt have any fixed day? A. No, sir; no certain day. Q. He was loving you and you were loving him, was- that the way of it? A. Well, I was loving him and thought he was loving me.’ After the completion of the cross-examination of this witness she was asked on redirect examination by the state the following questions and gave the following answers: ‘Q. They asked you this morning if the defendant promised to marry you in case you got pregnant; tell the jury why you submitted to him in the first instance and what promise, if any, he made you. (Objected to as being repetition.) The Court: I overrule the objection, in view of the cross-examination on that point. Mr. Woods: Defendant excepts. A. Well, I yielded to him the -first time because I believed he was true and believed that he loved me. I knew that I loved him. I believed that he would marry me, and he had promised to, and under them reasons I submitted. Q. What promise did he mate you at each and every time thereafter? A. He said it would never be known; he said we could marry too quick for anything like that to ever interfere. Q. When was the first conversation you had with him about the possibility or probability of your becoming pregnant from the relation that was being carried on between you and him? A. It was after he returned from the West. Q. After you wrote him that letter? A. Yes, sir. Q. What you stated to the jury is what he stated in connection with that? A. Yes, sir.’ The foregoing question and answer report shows what occurred and all that occurred with reference to this matter presented in the bill. The only objection urged by counsel for the defendant was it was a repetition, and as stated by the court, in view of the cross-examination on that point, it was overruled. The other ground of objection, as stated in the original bill, was not presented to the court. With this explanation this bill, is allowed. P. L. Hawkins, Judge Fortieth Judicial District” So that it is perfectly clear that he never intimated any conditional promise to marry her when the first act between them occurred, and no. such intimation or talk occurred between them on that subject until the spring of 1910, more than a year after he had debauched and ruined her under his solemn engagement and promise to marry her.

The concensus of the evidence, as a whole, clearly shows that, before her pregnancy became known and talked about in the community in the summer or fall of 1910, she went to all the social functions in the neighborhood and church and Sunday school, and was received by everybody in the neighborhood in precisely the same way that every other young lady was at 'the time, and that she went back and forth to these various functions and meetings all this time in the same way that all the other young ladies of the community did, and not otherwise; that whatever of her goings and comings in these respects, whether at night or day time, or both, were just like every other young lady in the community to the same functions and meetings went and came; and that she was out at night at various of these times with appellant and other young men, in precisely the same way that the other young ladies were, and to and from the same functions and meetings in the same way.

In the original opinion it is stated: “The defendant also introduced evidence to the effect that she, was caught in some bushes in a very compromising attitude with one Burton. This was denied on the part of the state, and there was evidence pro and eon as to whether it was Burton that she was seen with, but the defendant’s witness was pretty positive as to this fact.”- Upon a careful review of the evidence on this point, we find this state of facts: Bob Stanfield, appellant’s said witness, testified in .substance that one,Sunday evening the last of April, or the first of May, 1910, he was going with Mr. Wills from his son’s house to that of Mr. Wills, and that, in doing so, they passed through a certain pasture where there was a skirt of timber, and that while doing so, some 75 yards off, he saw Miss Lela and some man getting up off of the ground. “They just got up where I could see; I saw them when they got up.” He further said that he did not know for certain, but thought that fellow was True Burton; that that was his best judgment about it; that he did not think it was appellant, Jeff Gillespie; that he saw no other persons there except those two on that occasion; that said Mr. Wills was standing there with him and looking'towards this man and woman at the time he saw them; that Mr. Wills testified in this case on the former trial, but since then has died. The state, in rebuttal on this point, introduced the testimony of Mr. Wills given on the former trial. On this point he testified in substance, that he was with Bob Stanfield at the time Stanfield testified about what he saw, and that on that occasion appellant, and not Burton, was with Miss Lela, and that also his .own daughter and Bud- Oleson were there together and only some 30 or 40 yards separated from appellant and Miss Lela; that he knew Bud Oleson was- there at that time with his daughter because they came right on up to his house following him right on home. Bud Oleson swore positively that he was there with Mr. Wills’ daughter on that occasion, and that he saw Bob Stanfield and Mr. Wills pass them in 50 yards or closer, and that the appellant was there at the time with Miss Lela. Neither of these parties, Wills or Oleson, pretended to testify to any improper attitude by the appellant and Miss Lela' on this ' occasion or between Miss Lela and Burton, even if it could have been Burton. Burton swore positively he was not there with Miss Lela on said occasion. Mr. Wills’ daughter, who was married at the time she testified in this case, and her name was then Mrs. Knull, testified to altogether a different occasion; she showing by her testimony that “in the fall of 1910” she, Bud Oleson, “and Miss Lela Heffington, who was with, as far as my knowledge was, True Burton,” and a sister of Miss Lela, and Floyd Tedder. In other words, she says, that in the fall of 1910 three couples, she (the witness) and Bud Oleson, Miss Lela Heffington, and, she thinks, True Burton, and a sister of Miss Lela, and Floyd Tedder, were together, taking a walk, and that she and Oleson, when they got to the pasture where Stanfield had testified about, as shown above, separated from them and went on home, and that the other two couples continued their walk through the pasture; the three couples being together before she and her companion separated from them, and the other two couples continuing thereafter. Although appellant testified fully, lie never denied it was lie with Miss Lela. So that Bob Stanfield was either mistaken about seeing Miss Lela and Burton in a compromising position, or his testimony wab untrue. We make this statement and show the state of the evidence in order to remove whatever wrong impression is made in the original opinion as to Miss Lela and Burton being caught in a compromising position. Even if he was not mistaken that he saw some man there so with her, this was at least a year and two months after appellant had debauched her.

The court’s charge on accomplice’s testimony is in full as follows: “You are instructed that under the law the witness Lela Heffington is an accomplice. Now you cannot convict the defendant upon her testimony alone, unless you first believe her testimony is true and that it shows the defendant is guilty of the offense charged in the indictment, and even then you cannot convict the defendant upon said testimony, unless you further believe there is further testimony in the case corroborative of her 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, but it must tend to connect the defendant with its commission, and then, from all the evidence, you must believe, beyond a reasonable doubt, that the defendant is guilty. In this instruction you are instructed that corroborative evidence (need) not be direct and positive, independent of the testimony of Lela Heffington; but proof of such facts and circumstances as tend to support her testimony, and which satisfy the jury that she is worthy of credit as to the .facts essential to constitute the offense of seduction, as hereinbefore defined to you, and which tends to connect the defendant with the commission of the offense charged, will fulfill the requirements of the law as to corroboration. It is for you to say, from all the facts and circumstances in evidence before you, whether she has been sufficiently corroborated, and, if you find there is an absence of such corroborative testimony, you must acquit the defendant.” As we held in the original opinion, this charge is in accordance with the statute and the uniform line of decisions in this state. It is unnecessary to cite either. The latter part of the above-quoted charge could in no way have misled the jury to believe that the burden was not upon the state to corroborate Miss Lela.

In this connection appellant, in his reply to the state’s motion for rehearing herein, earnestly contends that the evidence is insufficient to show that Miss Lela was corroborated as required by law. Some seem to have the idea that the evidence corroborating an accomplice, to be sufficient, must itself show appellant’s guilt, without and exclusive of the accomplice’s testimony. Why this impression seems to prevail' with some we cannot understand, because the reverse of this has always been held by this court and all standard text-book writers. In reviewing this question in the case of Warren v. State, 149 S. W. 135, this court said: “This, court long ago laid down the correct rule on the subject of corroborating the testimony of an accomplice by other testimony tending to connect the defendant with the commission of the offense. In Nourse v. State, 2 Tex. App. 316, after quoting our statute on the subject, as follows: ‘Art. 801. A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense’ (Code Cr. Proc. 1911) — it was said: ‘Before the adoption of our Code, the rules of evidence known to the common law of England, both in civil and criminal eases, governed in this state, and they still govern, except where they are in conflict with the provisions of our Code of Procedure, or some other statute of this state. Under the common law, the rule of evidence as to the corroboration of accomplices is somewhat peculiar. Says Mr. Boscoe: ‘It has been repeatedly laid down that a conviction upon the testimony of an accomplice, uncorroborated, is legal. The point was considered by the 12 judges, and so decided in Rex v. Atwood, 1 Lea, 464, and again in Rex v. Durham, 1 Lea, 478.’ Roscoe’s Or. Ev. 120, 121, and authorities cited. The evidence of an accomplice is altogether for the jury (under the common-law rules of evidence), and the jury, if they please, may act upon it without any confirmation of his statement; but it is held proper for the presiding judge to advise them not to convict, if the testimony of the accomplice is uncorroborated. Under article 3118 of our Code (Paschal’s Dig.), the testimony of an accomplice must be corroborated to support a conviction. It has been decided both by the Supreme Court and the Court of Appeals in this state that the term “accomplice,’ as used in article 3118, applies, not only to accomplices in a technical or restrained sense, but to all witnesses who are particeps eriminis, whether as principal or accessories. Irvin, v. State, 1 Tex. App. 301, and authorities therein cited. It will be seen that, to justify a conviction on the testimony of an accomplice, there must be some evidence which, of itself and without the testimony of the accomplice, tends in some degree to connect the accused with the commission of the crime. The Supreme Court of California (in the case of People v. Melvane, 39 Cal. 614) say: -‘The corroborative evidence may be slight and entitled to but little consideration; nevertheless, the requirements of the statute are fully fulfilled if there be any corroborating evidence which of itself tends to connect the accused with the commission of the offense.’ This decision was rendered under a statute very similar to ours, in regard to the corroboration necessary to be bad to the testimony of an accomplice to support a conviction. Section 1111 of the (Penal) Code of California is as follows: ‘A conviction cannot be bad upon the testimony of an accomplice unless be be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense, and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.’ It is a mistaken idea to suppose that the corroborating evidence must conclusively of itself connect the defendant with the commission of the offense. If so, there would be no use -for the testimony of the accomplice.’ See, also, Jones v. State, 4 Tex. App. 531; Tooney v. State, 5 Tex. App. 193; Simms v. State, 8 Tex. App. 243; Clanton v. State, 13 Tex. App. 157; and Moore v. State, 47 Tex. Cr. R. 415, 83 S. W. 1117. See, also, the opinions of Judge Ramsey, and Judge Harper adopting the opinion of Judge McCord, in Nash v. State, 61 Tex. Cr. R. 264, 134 S. W. 714 to 716, and 718 et seq.”

Now as to the evidence corroborating Miss Lela. She testified positively, as shown above, that she and appellant, at his solicitation, and upon his professions of love for her and upon hers for him, in August, 1908, made an engagement to be married. He denied this and said he never at any time promised to marry her or became engaged to her. As shown above, she further swore positively that it was because of his said promise, and relying thereon, that she yielded to him. He admitted the act at the time she says it first occurred. He said that act was the first. He denied the engagement to marry. Miss Lela’s father, C. C. Heffington, swore that Miss Lela told him she and appellant were to be married. She so testified too. Her father further testified that, after the time she said she and appellant were engaged to be married, on one occasion appellant protected her and took a drunken party who was annoying her out of her presence, and that he thanked appellant for this courtesy and favor shown to his daughter, and that appellant then and there replied to him, “That is all right; I expect to marry her;” or “I expect to make her my wife.” He admitted this courtesy and favor shown by him to Miss Lela on said occasion and: the fact that her father thanked him therefor, but ■denied that he told her father at the time that he intended to marry her or make her his wife. That question was for the jury to pass upon. After they were engaged, as Miss Lela says, he went off to school, and she swore, and he admitted, that while at school he had written her three cards. They were produced, identified, and introduced in evidence; they were all three addressed to Miss Lela by appellant. One of them was merely a Jacksonville scene. On the next he wrote her: “Didn’t have time to write before; will write you in a short time. Will be in Friday two weeks.” On this card was printed, “To my sweetheart.” On the other he wrote: “How is everything in dear old Prairieville by now? Say, I may not come Friday; I don’t know yet. Hope I can come if I can get off.” On this was printed, “To my darling.” A11 this and the facts hereinbefore and hereafter recited, together with the fact of his practically continuous, although not exclusive, attentions upon her, was ample corroborative evidence of their engagement and of her testimony on the subject, and that by reason thereof he debauched and ruined her. Bost v. State, 64 Tex. Cr. R. 464, 144 S. W. 588. In her testimony, without reciting it, she gives a most reasonable explanation of why they did not marry before appellant succeeded in getting her pregnant. In effect it was that he was young, not then through school, and that, while they fixed the time for marriage, for these reasons, and the further reason that if he married her at the time at first agreed upon he would have to take her to his parents’ house to live. Neither desired this. Both, or she at least, was advised against it. Then he was not settled to any business or occupation; she relying at all times upon the ultimate consummation of their agreement of marriage. He doubtless, through that means, having accomplished her ruin, and getting her to indulge him in his sexual passion practically whenever he desired, did not intend to consummate the agreement, and although, after she found that he had gotten her pregnant, she besought him to do so, he peremptorily refused. It is true that he testified to a state of facts which might show, if believed, that he might not be the father of the child she afterwards bore, yet her testimony, and all the facts and circumstances developed in the ease with reasonable, if not absolute, certainty, shows that he and no other was the father of the child she had. He admitted that he had intercourse with her very soon prior to his trip to Colorado. He fixed that time as February 2, 1910, or prior thereto. She fixed it the latter part of ’February. In March, when she passed her menstrual period without it coming on, she at once wrote to him and besought his return because thereof. He admitted that he got that letter from her and that he soon thereafterwards returned and saw her. He admits having intercourse with her very soon, if not immediately, after his return and a continuation of such acts until he became certain that she was in that condition. He never claimed in his testimony that he was not the father of her child. She swore he was, and that no other ever had sexual intercourse with her. ■ Burton, whom appellant tried to show might have been its father, swore positively he never had sexual intercourse with her. She told appellant of her condition as soon as he returned. He thought she must be mistaken. When it became evident that it was the case, however, she says he advised her and insisted upon her taking some medicine to produce an abortion. He denied that he advised this, but the druggist, Mr. Jones, swears that, along about the time she claimed this occurred, appellant bought from him a bottle of ergot, and that he, at the time, pasted on the bottle a label “Fluid Extract of Ergot.” She testified that appellant scratched this label off at the time or just before he delivered the bottle to her. He said he did not; that the druggist never put any label on the bottle. This bottle, without any label, was identified by Miss Lela on the trial and admitted by appellant to be the bottle, and it was introduced in evidence. It then showed no label on it. She testified that, shortly before she gave birth to this child, appellant advised her to go to a rescue home at Arlington, and that he gave her the address thereof, and that he furnished her money to go there on and promised more. He admitted this.. Freddie Taylor and Bud Oleson both in effect testified that they saw appellant either the day of or the next day after it was known that Miss Lela had given birth to a child, and that the child was dead, and that, when told the baby was dead, he threw up his hat around in the air and said that let him out. He denied this. The other two witnesses, however, were unbiased and unprejudiced, and no one can doubt that the jury believed them and not him.

In the original opinion, just before quoting a special charge requested by appellant, which was refused by the court, to the effect that they could not find that there was a promise of marriage upon the testimony of the prosecutrix alone, but under the law her evidence as to this promise must be corroborated, etc., the substance of the fourth subdivision of the court’s charge, wherein he told the jury the various things that they must acquit appellant on, unless they believed such things beyond a reasonable doubt, etc., the opinion states: “Various objections were urged to these charges at the time.” Reviewing the record again, we find that this statement just quoted is incorrect, for appellant made no objections to this charge of the court. It was all clearly in his favor. He did request the court to give the said special charge quoted in the opinion, and the court refused to give it because, as he stated, it was covered.in the main charge. In our opinion the action of the court was correct.

The point was covered in the main charge, and amply so. Besides, it is not proper to single out any one fact, like was attempted in this instance, and charge thereon. Again, it is clearly decided by many decisions of this court that the seduced woman does not have to be corroborated in each and every particular of what it takes to constitute guilt of the accused. Nash v. State, 61 Tex. Cr. R. 269, 134 S. W. 709, in Judge Ramsey’s opinion, and cases cited by him therein; Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120; Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006; Nash v. State, 61 Tex. Cr. R. 281, 134 S. W. 709, in Judge McCord’s opinion adopted by this court in said case; Wright v. State, 31 Tex. Cr. R. 354, 20 S. W. 756, 37 Am. St. Rep. 822, and other authorities cited by Judge McOord. The Nash Case, supra, as decided in the opinions of Judges Ramsey and McOord, have uniformly and many times been approved and followed by this court since then and down to this date. The court below correctly refused appellant’s said special charge.

As stated in the original opinion, the reputation of Miss Lela, the prosecutrix, for chastity became a question. The appellant introduced some 14 witnesses, who in effect testified to her bad reputation in this respect. Some three of these were kinsfolks of appellant The greater number of the others, taking their testimony as a whole, tend quite strongly to show that they were speaking of her reputation in this respect after it became known in 1910 that she was pregnant This was more than a year after appellant had seduced, debauched, and ruined her. One cannot read their testimony without being impressed with the fact that their testimony as to her bad reputation was founded upon appellant’s connection with her and long after he had seduced her. On the other hand, the state introduced a like number of witnesses of-both sexes, young and old, one a young lady school-teacher, another a justice of the peace, all of whom swore that her reputation was good, and that it only became bad about the summer of 1910, after it became known and talked about that she was in a pregnant condition. In order to cast reflection on her, appellant also proved that she rode out at night and went back and forth to the various social functions, to church, etc., with young men at night, sometimes in a buggy, and sometimes walking. As stated above, taking the testimony as a whole, one cannot but be forced to the conclusion by the testimony of all of the witnesses that this young lady went back and forth with young men and appellant, just like every other young lady in the same neighborhood continuously did, and there is no instance of any indiscretion on her part in this respect that does not equally apply to every other young lady in the neighborhood during the same time.

In the original opinion, after stating briefly and generally these matters, it is stated in effect that, under these circumstances, appellant offered to prove that on one occasion she had a difficulty with a young gentleman in a church in which she called him a damn son of a bitch, and that there are other bills of a similar nature; and it is stated therein that the court ex-eluded this testimony but qualified the bills stating that later he informed the defendant he could introduce all this character of testimony, but he failed to do so. As stated in the original opinion, this testimony was admissible; but, taking the record on the subject, it shows either that the witnesses that he attempted to prove this by would not have so sworn or that the state would have disproved it, for, when the court repeatedly told appellant’s attorneys that they could introduce such proof, they, declined to offer it; and, under the circumstances, we take it this dispels any reflection upon the young lady attempted to be raised by said bills.

In discussing another one of appellant’s bills in permitting the testimony of Miss Lela, the' prosecutrix, that she had written a letter to appellant while he was in Colorado, the bill is stated pretty fully. The original opinion, in concluding this subject, stated that this testimony by the prosecutrix was not admissible, unless it was shown defendant received the letter, and he was notified in some way of her reasons for wanting him to come back, and that her undisclosed reasons would not affect him and could not be binding on him, and concluded by stating that upon another trial, unless these matters are shown in some way to have been brought to the attention of the defendant, they would not be admissible. Upon a further reviqw of the record, all these conditional statements in the original opinion of how and when this testimony would be admissible were fully and completely shown. The appellant himself swore that he received the said letter Miss Lela wrote him while in Colorado; that after he came back he saw her about it and she swore she then told him the reason she had written for him to come back and explained the matter to him fully. He did not deny it, but in substance admitted that she had told him, and told him the reasons, and it was at this time he procured for her the medicine to produce an abortion. So that, when we review the record, we find that the action of the court in permitting this testimony was correct.

In the original opinion one of appellant’s bills is recited about Miss Lela, the prose-cutrix, testifying that her mother was dead. The bill, as the opinion shows, tells about the grave and solemn manner, with tears in her eyes, and as an actress before the jury, with her head hung down, she told the jury that her mother was dead. Upon reviewing the record .upon this question, we find, which is not stated in the original opinion, that the court qualified this bill by stating, “Approved as to the fact; manner of witness not.” As we understand this qualification, it distinctly disapproved what the bill stated as to her manner of testifying.

The appellant accepted this bill this way and he is bound thereby. So that we conclude that, while she was asked the question whether her mother was or not living, , no such dramatic manner of question or answer occurred; but, as held in the original opinion, this evidence was admissible. Kearse v. State, 151 S. W. 830, 831.

In another bill, and the only other one discussed in the original opinion, it is shown-that the state offered 0. Oleson, who testified to the good reputation of said prosecutrix for chastity, and that he never observed anything of unladylike conduct in the prosecutrix: at any time, but, on the contrary, that her conduct was that of a nic,e lady. The complaint in this bill is that the court did not permit the appellant to ask this witness, on cross-examination, if he did not go to-Tom Eubank the next morning and privately request Eubank never to say anything about seeing him and prosecutrix out together the night before on the public highway at that time of night. It is not stated in the original opinion that the court qualified this bill, but we find upon a review of the record that he did qualify it as follows: “Foregoing bill approved with explanation that Eubank’s testimony and George Wells’ testimony (the two being together in a buggy) was admitted as to meeting Christian Oleson and Miss Heffington, the circumstances and act, also Ole-son’s testimony on this point, but any subsequent (statement) of Oleson was not admitted. See statement of facts for testimony of Eubank, Wells, and Oleson on this point.” By an examination of the testimony of this witness Oleson, as referred to by this qualification, we find that he testified in substance that he was out buggy riding with Miss Lela, prosecutrix, about the time inquired about, and that somewhere between 11 and 12 o’clock he met two gentlemen, one of whom he supposes was Mr. Eubank, and that another couple, Sam Jordan and Miss. Mary Tates, in another buggy were along with' him at the time. Tom Eubank testified that he and George Wells, the party- who was with him in the buggy on this occasion, had to go to Mabank from Prairieville; that they left Prairieville after night, attended to their business at Mabank, and then returned to Prairieville, reaching Prairieville about midnight, or a little after. “As we came into town (evidently meaning Prairieville) near the turn of the road at a blacksmith shop, we were traveling pretty fast. I came very near running over a boy by the name of Christian Oleson and Miss Lela Hefiington. Mr. Sam Jordan and Miss Mary Yates were just behind them. Christian Oleson and Miss Lela Hefiington, the prosecuting witness in this case, were in a buggy to themselves. They were going' towards Mabank on a road leading south from Prairieville. What I have detailed above took place long before this controversy between Jeff Gillespie and Miss Lela Hefiington, now in court.”

Said Wells .testified that he and said Eu-bank, on this occasion, met said Oleson and: Miss Heffington right at the blacksmith shop Just as he came into the Prairieville road. “We met two buggies, and Just as we got in the middle of the street we met 25, 20, or 25, more people; i rather think they had been to a party, because they were all young people. They were Just right in the middle of the street, you may say, right near all together.” On cross-examination he testified: “I remember this meeting, because, as we came in, Tom says, ‘Who were those?’ I told him who they were; and, ‘Hell, the whole town is up,’ he said when we ran into the other bunch.” The prosecuting witness, Miss Lela herself, testified substantially about taking this ride, the two couples of them, she and Oleson and Jordan and Miss Tates. They went along together. Certainly it cannot be contended, with any show of reason, that under such circumstances the appellant had the right to the purely hearsay testimony of Mr. Oleson to Eubank the next day, as claimed by this bill. There is no intimation in this bill or the testimony of any or either of these witnesses, or any other, that any improper relationship whatever occurred between Oleson and Miss Hef-fington on this ride in company with the other couple. Concede, for the sake of argument, that these two ladies taking a ride with these two young gentlemen, with whom they had gone to this party that night, as they returned home, with them, was an indiscretion, the hearsay testimony of Oleson, proposed to be proved as to what he said to Eubank the next day, even if it occurred, was without doubt inadmissible on any theory in this case.

We have reviewed also all of appellant’s complaints in this case. We have not discussed them all, and did not in the original opinion. It is unnecessary to do so. None of them show any reversible error.

The state’s motion for rehearing is granted; the judgment of this court reversing and remanding this cause heretofore entered will be set aside; and the judgment of the court below will now be affirmed.

DAVIDSON, J.

(dissenting). The state has filed a motion for rehearing. The original opinión states that the indictment was insufficient in that it did not conclude “against the peace and dignity of the state,” but it was treated in the original opinion as if the clerk made*an omission in transcribing the indictment. On rehearing it is shown that such was the case, and a certified copy of the indictment attached to the motion shows it did conclude “against the peace and dignity of the state.”

Another ground of the motion is it is contended the writer of the opinion was in error .in holding, the charge on accomplice testimony with reference to corroboration erroneous, and it is insisted in the motion that the charge was sufficient, as' found by the majority of the court qualifying the opinion written by the writer. That part of the motion is disposed of by stating, inasmuch as the majority hold it was sufficient, this ground of the rehearing is superfluous. I did not agree with my Brethren about that, but the majority opinion controls. It is unnecessary to notice that further.

It is contended, also, the opinion is in error in holding the court erred in not charg-, ing the jury that, if the prosecuting witness' yielded to the embraces of the accused and permitted him to have intercourse with her upon a conditional promise of marriage (that is, a promise of marriage if she should become pregnant), they would acquit, inasmuch as there is no evidence calling for such charge. The motion admits on cross-examination prosecuting witness testified that appellant promised her if she became pregnant he would marry her, but the motion contends; “Her evidence, taken as a whole, clearly discloses that she had carnal intercourse with the appellant the first time in February, 1909, and not in 1910, as stated in the opinion of the court, and that such first act of intercourse was upon a sole and unconditional promise of marriage,” etc. An examination of the record rather tends to support the contention of the motion that the act of intercourse did occur in February, 1909, instead of 1910, as stated in the opinion. It may have been the fault of the writer in dictating the original opinion in calling the year 1910 instead of 1909, but that mistake was beneficial to the state. If the promise was conditional, or there was an issue on that question, the court should have charged that favorable to the defendant. That is an axiomatic rule. At least it has heretofore been the law in Texas. It is for the jury to say where there is an issue in the case as to whether the testimony, taken as a whole, leads to one conclusion or another; the jury should settle that, and not the court. Referring to the statement of facts, in order to be a little specific in the face of the criticism in the motion, I find she testified as follows: “The first effort of defendant to take any liberties with me occurred in February, 1909. I was not willing; he said he did not see why; if I had any confidence in him, he had promised to marry me, he did not see why I could not trust him, if ever, and I believed him. He talked to me about this just one time before I yielded to him. The improper relation began at the time of the first conversation, that night. Prior to this he mentioned the matter to me coming from church; this may have been two weeks before, a short time before. I told him at that time I could not do that. * * * On the next occasion after the first conversation on this subject he just asked me to yield to him. I did not want to. He just insisted upon the ground that we were going to marry, and, if I loved Mm, why not then; that it never would be known; there would be no harm anyway. We. talked about the matter most all the way there and back from the party. I finally yielded to him on that occasion; I did so because I believed him and believed that he intended to marry and loved him, and on that ground I did and no other reason.” Speaking further of this she testified: “He said we would marry before anything like that happened; he said if there was anything of that sort that he would marry; he said that we were going to marry, and there would be nothing like that happen before it. He told me that he would marry me if X became pregnant, but'not then. It was in 1910 that he told me he would marry me if I became pregnant. It was after he came home from the West. Q. Did he make a solemn promise to you, Miss Lela, to marry you if you became pregnant? Did you believe that he would? A. Yes, sir. Q. Was that the reason then that you yielded to him; you relied on that promise, did you? A. Yes, sir; long before 1910. Q. Well, did you rely on it then? A. Yes, if I hadn’t believed what he was saying I would not. Q. You believed that he would marry you if you became pregnant, didn’t you? A. I believed, that he was going to marry me anyhow. Q. Well, if you became pregnant, didn’t you believe that he was going to marry you? A. Sure. Q. Did you believe that that would hurry up the wedding? A. No, sir.”

Germane to this, and as shedding light upon it, the girl testified that the act of intercourse occurred in February, 1909. This indictment was returned in January, 1911. Under her statement of the evidence, intercourse occurred between them from February, 1909, to 1911. This should be viewed in connection with her statement on cross-examination to the effect that he would marry her if she became pregnant and all the facts in evidence. I am still of the opinion that the question of conditional promise of marriage was a grave issue in the case. If the issue is there, the jury must decide it. The strength of the testimony and weight of it, and the credibility of the witnesses, our law relegates to the jury. The testimony may not be very strong or cogent, or it may be; but, when the issue is in the case, the charge should submit it, especially when it is favorable to the accused. The girl is considerably older than the defendant and she was carrying on this intercourse with him for nearly two years before the indictment was found. She became pregnant, and the facts are in serious controversy as to'whether defendant could be the father of the cMld. If his testimony is true, he could not have been, because the cMld was born about 10 months after he had intercourse with her. She says he had intercourse with her just before he left Texas for Colorado, and this, under | her testimony, was in latter part of February, but he says it was about the first of February. If he is correct about it, the child was born about 10 months after he had intercourse with her, and there is considerable testimony to the effect that she may have had intercourse with one or more other young men in the meantime; but those are all issues for the jury, under appropriate instructions from the court. Under her evidence, it was more than 9 months. It has been decided in Texas, and by this court, that where the prosecutrix consents to intercourse as' soon as suggested, and promise of marriage appears to be but of slight inducement, evidence is insufficient. Garlas v. State, 48 Tex. Cr. R. 449, 88 S. W. 345; Simmons v. State, 54 Tex. Cr. R. 627, 114 S. W. 841. Now she states that on the first occasion she did not consent to' it, but on the second occasion, about two weeks subsequent to the first conversation, she did agree to it; that they talked about it all the way to the party and back, and she finally agreed. This was a matter of a lengthy parley and conversation, and not upon a “sudden impulse.” The amicable agreement was after mature deliberation and a promise to marry if pregnancy resulted. It is also held that continuous association and intercourse for about two years after the alleged promise of marriage is not sufficient to corroborate the promise of marriage, but rather serves to destroy .the idea of marriage. Spenrath v. State, 48 S. W. 192; Fine v. State, 45 Tex. Cr. R. 291, 77 S. W. 806; Nolan v. State, 48 Tex. Cr. R. 438, 88 S. W. 242. Again it was said if defendant had no intercourse with prosecutrix for 10 months prior to the birth of her baby, it was very unlikely he was the father of her child. Jeter v. State, 52 Tex. Cr. R. 217, 106 S. W. 371. All these matters being in the record, certainly the court ought to have charged with reference to conditional promise. Nor will it do, as a legal proposition, to agree with state’s counsel that a charge must not be given if, upon an inspection of the whole of the testimony, the charge ought not to have been given. That is rather a peculiar way to state the proposition. The rule is, if from the testimony of any one witness or the testimony as a whole, there is a favorable issue for the defendant, his side of the law must be charged applicable to that issue. In other words, the rule is fundamental in Texas, or has heretofore been held so tó be, that the charge must be given to the jury so as to cover every favorable phase of the case for the defendant. If it should arise from the testimony as a whole, it ought to be given, if it should arise from the testimony of any one or more witnesses, it ought to be given; if it should arise from the defendant’s own testimony, it ought to be given.

The motion for rehearing ought to be overruled.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    WEATHERFORD v. STATE.
    (No. 3074.)
    (Court of Criminal Appeals of Texas.
    April 8, 1914.)
    Criminal Law (§ 1001) — Punishment—Separate Defenses — Suspended Sentence Law.
    Where, immediately after accused entered a plea of guilty in a prosecution for forgery, and the jury had returned a verdict, she entered another plea of guilty to another similar charge, and imprisonment in the penitentiary was assessed, she, haying entered pleas of guilty to two felonies on the same day, was not entitled to a suspension of either sentence under Suspended Sentence Law (Acts 32d Leg. c. 44) § 4.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2554-2559; Dec. Dig. § 1001.]
    Appeal from District Court, Dallas County; Robt. B. Seay, Judge.
    Jessie Weatherford, alias Jessie Norton, was convicted, of forgery, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

This is a companion case of that of the same appellant, 165 S. W. 581, disposed of at the last session of this court. In this case, as in the other, she entered a plea of guilty, and the evidence is just about the same, and, under the authorities cited in that case, we hold that the evidence is sufficient to sustain the conviction on a plea of guilty; she receiving the minimum punishment for forgery. In no ease ' other than where capital punishment may be assessed is the court required to appoint counsel for a person on trial, except it is provided in the suspended sentence law (Acts 32d Leg. e. 44), when a person is charged with a felony and has no counsel, the court shall apprise him or her of the fact that she may make application for a suspension of sentence, and, if the person on. trial expresses a desire to enter such plea, the court shall appoint an attorney to prepare the plea. The affidavit of Judge Seay is in the record, wherein he states when appellant was brought into the courtroom the following took place:

“The Court: There are two cases of forgery against you, and I am informed that you have an idea of pleading guilty.
“The Defendant: Yes, sir.
“The Court: Do you understand the nature and consequences of what you are doing? You understand that the .punishment is from two to seven years?-
“The Defendant: I guess I do.
“Thereupon the court turned to Mr. Willis Pierson, an attorney who was engaged in another case, before the bar, and stated to Mr. Pierson that the law required me to appoint an attorney to prepare an application for suspended sentence, if the defendant desired, to which Mr. Pierson responded that the woman had been forging the name of some of his kinsmen, and T don’t care to have anything to do with it.’ Thereupon the court turned to Judge M. M. Brooks, who was in the case with Mr. Pierson that was pending for trial, and appointed Judge Brooks to represent the defendant, as the stenographer’s report shows. The court then took up the law of suspended sentence and told Judge Brooks that this was a new law, and, having examined it, the court would explain it to him, and that the ■ court was required by law to appoint an attorney to find out if the defendant wanted to file the application, and, if so, to file one for her, and that the court had blanks prepared for that use. The court furthermore said something of trouble which arose in this case owing to the fact that the defendant intended to plead guilty twice, and I hardly knew how the suspended sentence law could be utilized, for, if the jury suspended the first sentence, then in the second she could not make application for a suspension of sentence, and the first suspension of sentence would be set aside. I turned to other matters while Judge Brooks talked to the defendant, and after a short time Judge Brooks said to the court: ‘The defendant seems to understand clearly what she is doing, your honor.’ After which remark Judge Brooks either walked out of the room or walked away to look after the Mills Case that he was engaged in.” '

This affidavit of Judge Seay is supported by the affidavit of Sheriff Brandenburg, A. C. Cason, Jr., stenographer, and M. J. Ed-ling, clerk of the court. The affidavit of Judge Brooks is also in the record, in which he' states that he did not- explain to the woman her rights under the suspended sentence law, and did not know the judge relied on him to do so. The record also discloses that immediately after she entered the plea in this case, and the jury returned a verdict, she entered a plea of guilty to another charge of forgery, and her punishment was assessed again at two years in the penitentiary. Under section 4 of the suspended sentence law appellant would in no event be entitled to a suspension of either sentence, having entered pleas of guilty to two felonies on the same day, and the matter presents no error.

The judgment is affirmed.


text:
    GOLDSTEIN v. STATE.
    (No. 2983.)
    (Court of Criminal Appeals of Texas.
    March 25, 1914.
    On Motion for Rehearing, April 29, 1914.)
    1. Criminal Law (§ 742*) — Questions for J URY — Accomplices.
    On a trial for receiving and concealing stolen property, evidence held sufficient to require the submission of the question whether one of the state’s witnesses was an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1721; Dec. Dig. § 742.*]

      2. Criminal Law (§§ 507, 510) — Testimony of “Accomplice” — Necessity of Corroboration.
    On a criminal trial, if a witness for the state was an accomplice, or if the jury had a reasonable doubt whether he was an accomplice or not, they could not convict upon his testimony, unless they believed that it was true, that it connected accused with the offense charged, and that there was other testimony corroborative thereof, tending to connect accused with the commission of such offense; and an “accomplice” in this connection was one connected with the crime charged as principal, accomplice, or accessory, and included all persons connected with the crime by unlawful act or omission before, at the time of, or after the commission of the offense, whether or not they were present and participated in its commission.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1082-1096, 1124-1126; Doc. Dig. §§ 507, 510.

    For other definitions, see Words and Phrases, vol. 1, pp. 75-79; vol. 8, p. 7561.]
    On Motion for Rehearing.
    3. Criminal Law (§ 1090) — Appeal — Reservation of Grounds of Review — Bill of Exceptions.
    In a felony case, it is not necessary to preserve a refused instruction by a bill of exception, where the record shows its presentation and request in ample time, and hence, where the record did so show, the insufficiency of the bill of exceptions was immaterial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Criminal Law (§ 1064) — Appeal-Reservation of Grounds of Review — Motion for New Trial.
    A motion for a new trial because the only incriminating testimony was that of accomplices, and was not corroborated, and because the court erred in refusing to give a special charge submitting the issue as to whether or not one of such witnesses was an accomplice, sufficiently raised the contention that the evidence made an issue as to whether the witness was an accomplice, and that the court erred in refusing to submit that issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    5. Criminal Law (§ 824) — Instructions — Necessity of Requests.
    While the statute requiring the charge to be submitted to the attorneys, and requiring the attorneys to make their objections thereto before the charge is read to the jury, does not require special charges to be asked, the requesting of special charges is the better practice and to .be commended.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Judge.
    Dave Goldstein was convicted of receiving and concealing stolen property, and tie appeals.
    Reversed and remanded.
    W. W. Nelms, of Dallas, for appellant. Currie McCutcheon, Co. Atty., of Dallas, and C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of receiving and concealing stolen property.

A number of bills of exception are presented in the record in regard to the introduction of testimony, but, as qualified and approved by the court, none of them present error. However, the appellant submitted a special charge requesting the court to submit to the jury the question of whether or not the witness Frank Barrett was an accomplice, within the meaning of our statutes governing accomplice testimony. Claude Rice is the self-confessed thief. 1-Ie was staying with Barrett. He says Barrett knew he was a thief, yet kept him at his home. That on the night the property was taken he and Barrett went to Lake Cliff and went in swimming. That he (Rice) deposited his pocketbook with the manager of the swimming pool. That they remained in bathing about an hour, when Barrett first got out and went outside. That, when he (Rice) got out, the manager gave him the wrong pocketbook, and he discovered it when he got outside and called Barrett’s attention to it. That they then went on to Barrett’s and he, the next day, placed it with appellant to be disposed of. The property was found in appellant’s possession. Barrett testified: “One night we went in swimming over at Lake Cliff, and I came out and dressed ahead of Claude and waited out there at the head of the hall, and then I went on to the automobile entrance and saw him there, and we went to Beckley avenue. When I got out, Claude said they had given him the wrong pocketbook out there, and he did not know what was in it; he first said there was a couple of dollars in it, and then said, T am not much better off;’ and we went a little further, and he said there was some jewelry in it; and when we got home he taken this jewelry out and showed it to me. We left there and went to the confectionery store up on Marslis and Jefferson avenue; and we came back by the way of Tenth street; and then Claude threw two of the rings on the ground and stamped them in the ground. That was on Tenth street in Oak Cliff, about opposite the telephone building. We came home, and I asked Claude to take them back, and he said he was scared to; said he was scared of getting into trouble. I saw the stuff before I left home to go to the drug store. We went from Lake Cliff to my home, and he took the jewelry out and showed it to me, and I began to get nervous and excited; mother was sitting on the front porch, and I was afraid she would hear us talking. In the morning Claude got up and took the stuff to town; took it to Dave Goldstein, i had a conversation with Dave Goldstein; one conversation I had with him I told him that I heard the people at Lake Cliff had mine and Floppy’s description, and I said, ‘Let’s give the stuff up before trouble overtakes us.’ ” 'While he testified he did not know Nice was a professional thief, he admits he kn'ew he had been convicted of a misdemeanor theft, and he had paid his fine, -and again took him to his home.

The testimony, as a matter of law, does not make Barrett an accomplice; yet we think the facts and circumstances, and especially his own testimony, are such as to raise that issue, and the court erred in not giving -the following charge requested by appellant; “An accomplice, as the word is here used, means any one connected with the crime -charged, either as principal, accomplice, or accessory. It includes all persons who are connected with the crime by unlawful act or -omission on their part transpiring either before, at the time of, or after the commission -of the offense, and whether or not they were present and participated in the commission of the crime. Now, if you are satisfied from the evidence that the witness Frank Barrett was an accomplice, or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions, then you are instructed that you cannot convict the defendant upon his testimony, unless you first believe that the testimony of said Frank Barrett is true, and that it connects the defendant with the offense charged in the indictment, and unless you further believe that there is other testimony in the case, corroborative of the testimony of said Frank Barrett, tending to connect the defendant with the commission of the offense charged.”

Reverse the case, and if Barrett was on trial, under the above testimony, together with the other facts and circumstances in evidence, we would hesitate long before reversing the case because of the insufficiency of the testimony. In fact, if the court properly charged on circumstantial evidence, and there was no error in the record, we would affirm the case, if the jury should adjudge him guilty, and under such circumstances the issue is raised with that force and cogency to require the matter to be presented to the jury.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

In the motion for rehearing, it is not insisted by the state that the evidence does not raise the question as to whether or not Barrett was an accomplice; but the state insists that the bill of exceptions taken to the refusal of the court to give this charge should not be considered because the 60 days first allowed had expired before -the court made the order granting the additional time. The court, on motion of appellant, entered an order correcting this entry, stating that the time first allowed had not expired when he granted the -second. This the state insists the court had.no authority to enter at the time he did so. This we do not deem it necessary to discuss, for in a felony ease it has never been held that it is necessary to preserve a special charge requested by' bill of exception, where-the record discloses itself that it was presented to the court and requested to be given in ample time. This record discloses that two special charges were presented to the court asking him to submit to the jury, for their determination, the question of whether or not Barrett was an accomplice, and the court refused to give either of them. Again, it is said that in the bill of exceptions, if we consider it, it does not state any reason why the special charge was called for. If it was not necessary to take a bill of exceptions and have it entered of record, of course whether or not it is sufficient is immaterial.

The next ground is that, in the motion for a new trial, this question is not sufficiently raised for us to review it. The motion for a new trial alleges: “Because the verdict of the jury is contrary to the law and the evidence, and is not supported by the evidence submitted on the trial hereof, because the only testimony against this defendant of an incriminative character was the testimony of Claude Rice, alias Floppy, and Frank Barrett, both of whom were accomplices and particeps criminis, and the testimony of said witnesses was not corroborated by the state by any evidence of any character, and because the court erred in refusing to submit to the jury special charge No. 4 requested by defendant; the said charge submitting to the jury the issue as to whether or not thé witness Frank Barrett was an accomplice.” This clearly notified the court that appellant’s contention was that the evidence raised the issue that Barrett was an accomplice, and that the court erred in refusing to submit that issue to the jury.

The object and purpose of the law passed at the last session of the Legislature, requiring the courts to submit their charges to attorneys, and the attorneys to make their objections thereto before it was read to the jury, was that the attorneys engaged in the trial of a case must call the court’s attention to any omissions or errors in the charge that the charge might be corrected at that time; and, while the law does not require special charges to be asked, yet we think it the better practice and to be commended; and where the record discloses that the appellant not only called the court’s attention to an omission to submit an issue raised by the testimony, but in addition thereto a special charge was prepared and presented curing the omission, if the court then refuses to submit the issue, and the appellant in the motion for new trial calls specific attention to his contention, as in this case, so as to direct the court’s attention to the specific matter, -if the omission was such an error as might and probably would injuriously affect the defendant,. reversible error is presented.

The motion for rehearing is overruled.