
    STRACNER v. STATE.
    (No. 5422.)
    (Court of Criminal Appeals of Texas.
    June 18, 1919.
    On Motion for Rehearing, Oct. 29, 1919.)
    1. CRIMINA!, law <&wkey;598(8) — Continuance FOR - ABSENT WITNESS DENIED FOR LACK OF DILIGENCE.
    Upon application for continuance, because of the absence of a witness, where process was issued for the witness in July, 1918, and defendant knew that such witness was in the United States Army in Camp Travis, and the witness was home on a furlough about Christmas, 1918, and January 1, 1919, and was in the county, and defendant’s father then saw and talked with the witness and asked him to attend the trial, but then mpde no effort to secure process, there was insufficient diligence shown to require a continuance in February, 1919.
    2. Criminal law <&wkey;603(7) — Continuance FOR EVIDENCE OF PROSECUTRIX’S INTIMACY WITH OTHER MEN.
    In a prosecution for seduction, defendant was not entitled to a continuance for failure to procure a witness by whom he intended to prove that witness had kept company with prosecutrix and had sexual intercourse with her, where defendant did not allege whether such acts occurred before or after the alleged seduction, since, if after, the evidence'was immaterial.
    3. Criminal law &wkey;>1124(4) — Failure of RECORD TO SHOW TESTIMONY HEARD ON MOTION FOR NEW TRIAL.
    Where the record shows .that the court overruled a motion for new trial, supported by several affidavits of newly discovered testimony, and that there was a contest thereon, and there were controverting affidavits, but does not show whether testimony was heard, such phase of the record need not be discussed.
    4. Criminal law <&wkey;1119(l) — Bill of exceptions TOO GENERAL TO ENABLE REVIEW.
    A bill of exceptions, stating that appellant objected to fact that prosecutrix held her baby while testifying, etc., but stating no ground of objection nor any of the attendant facts, nor how the matter was presented, cannot be considered, because not stating the facts necessary to enable the court to review it intelligently.
    5. Witnesses <&wkey;287(3) — Testimony of PROSECUTRIX AS TO PROMISE OF MARRIAGE.
    In a prosecution for seduction, prosecutrix’s testimony on re-examination that she consented because defendant promised to marry her, when she had stated on cross-examination that she had done so because she loved him, was clearly admissible. -v
    6. Seduction &wkey;>42 — Evidence of prosecu-trix’s ASSOCIATION WITH LEWD WOMEN INADMISSIBLE.
    In a prosecution for seduction, evidence that prosecutrix’s sister was the mother of a bastard and had murdered her husband was not improperly excluded, where it was shown' that prosecutrix had not associated with such sister since prosecutrix was five years old.
    7. Criminal law <&wkey;1170(4) — Exclusion OF EVIDENCE NOT ERROR WHERE MATTER SUBSEQUENTLY INTRODUCED.
    In a criminal prosecution, the objection that a witness was not permitted to answer a question, which was objected to as leading, is not well taken, where the answer sought was upon a matter that was fully detailed by the witness during the trial.
    8. Seduction &wkey;>45 — Evidence sufficient •TO SUSTAIN CONVICTON.
    ' In a criminal prosecution for seduction, evidence of the previous character of the prosecuting witness and of the acts and promises of defendant held sufficient to sustain a conviction.
    On Motion for Rehearing.
    9. Infants >&wkey;18 — Application of juvenile ACT TO INFANT 19 YEARS OLD AT TRIAL.
    Had the issue been suggested on trial that defendant appellant was under 17 years of age at the time of the seduction, for which he was convicted, he could not have been relegated to the juvenile law relating to youths of that age, where he was 19 years of age when tried, so that the juvenile act did not apply, and he could be convicted of the felony.
    10. Seduction <&wkey;31 — Under promise of MARRIAGE WHEN DEFENDANT A MINOR.
    That defendant was a minor,' under age and incapable of contracting marriage, did not render him immune from the law for seduction under promise of marriage.
    Appeal from District Court, Upshur County; P. O. Beard, Special Judge.
    Charlie Stracner was convicted of seduction, and he appeals.
    Affirmed.
    J. S. Barnwell, of Gilmer, T. H. Briggs, of Big Sandy, and F. J. McCord, of Longview, for appellant.
    E. A. Berry, Asst. Atty. Gen., and C. E. Florence, of Gilmer, for the State.
   DAVIDSON, P. J.

Appellant was convicted of seducing Elsie Glasscock and allotted four years in the penitentiary.

He filed an application for a continuance on the 4th day of February, 1919, alleging the absence of several witnesses. He seems to-rely alone upon the absence of Jerry Parish and Will Bolton. The indictment was returned on the 26th day of January, 1918. Appellant’s first application was filed on the 4th of February, 1918. The second application was filed by him on the 22d day of July, 1918. So this is the third application. The' second application was based, among other names, upon the absence of Will Bolton 'and Jerry Parish. This application shows that process for Jerry Parish was issued on the 21st day of January, 1919, direct to the sheriff of Bexar county. Parish was in the United States Army in Camp Travis, Bexar county.

The second application shows that he issued process for Parish on the 22d day of July, 1918. He also alleges in that, that witness attended that term of the court. This shows a want of diligence, and especially in view of the fact that about the Christmas holidays, 1918, or the first of January,' 1919, Parish was in Upshur county on a furlough visiting friends and relatives. The father of appellant saw Parish and talked with him, and asked him to attend the trial; but no effort was made to secure process for the witness at that time, nor for some time afterward. He had known for months that Parish was in the army, and that he was at Camp Travis. There was no diligence used to ascertain his whereabouts further than as stated. Appellant says that he issued process for the witness in the name of Jerry, when he ascertained afterward that his initials were M. S.; that they had been raised in the same neighborhood, within two or three miles of each other. We are of opinion that the diligence set up is not sufficient; in fact, there is a want of necessary diligence.

The evidence expected to be obtained from this witness was to the effect that he had been intimate with the prosecutrix, and had gone with her a.great deal in company, buggy driving, etc. These matters came up during the trial. A great many witnesses testified with reference to' the character of the girl, some of whom gave her a bad reputation; others, the contrary. It came as a matter of evidence as to whether she was in the habit of going out in company and to public gatherings, socials, .attending church, etc., with young men other than defendant, and the evidence is practically one way, that this was not true; that she had gone a few times with others than defendant, but that he was her constant attendant “in season and out of season,” and with a very few exceptions he was her attendant whenever she left home on any of these occasions. The testimony set out in the third application, the one under consideration, with reference to what could be shown by Parish, is rather general in statements. In substance, he expected to prove by Parish that he was acquainted with prosecuting witness, was in her company a great deal during the time the alleged “seductive conduct” was being carried on between defendant and prosecutrix, and carried her to parties, churches, and was often her escort, and that defendant believed and expected to prove by said witness specific acts of intimacy with said Elsie Glass-cock. This is too general in its statements. When these acts occurred, if they did occur, or when he expected to show that they did occur, is not stated. If they occurred after the seduction of the girl by the appellant, it would not be very material. If the girl was unchaste or had acts of intercourse with other men before appellant seduced or had carnal intercourse with her, the testimony might become valuable; but these statements do not show at what time he expected to show that Parish had intercourse with the girl. In the light of this application, from the standpoint of the motion for a new trial, we are of opinion that the court did not err in refusing the continuance. The matter of Parish’s attention to the girl became a matter of evidence, and it is of such a nature from all the testimony that it shows he was not her constant attendant and only went with her a very few times. We deem it unnecessary to discuss the absence and the relation of the witness Bolton to the ease. This testimony would be considered in the main cumulative, except perhaps as to one feature of it, and that was that he expected Parish to testify that he had had “specific acts of intimacy” with the prosecutrix.

Appended .to the motion for new trial there are several affidavits alleging newly discovered testimony. To this there was filed controverting affidavits, ánd a contest is shown. The evidence introduced on the trial on this contest is not of record, if evidence was introduced. How the court tried this question is not shown by thi? record; whether on the affidavits, or heard testimony. It does show, however, he overruled it, and there is a bill of exceptions reserved; but it sets out only the affidavits. There is nothing shown by the bill indicating that evidence was introduced and heard by the court. The court simply signs the bill containing the affidavits without qualification. We deem it unnecessary to discuss this phase of the record. The action of the court we think was not erroneous, and as presented the court was correct in overruling it.

There are quite a number of bills of exception. Most of these are so general in statement they are not in condition to be considered. One of the bills recites that the prosecuting witness was permitted to carry with her and have in her lap on the witness ■stand while testifying the child which was alleged to have been the child of defendant, thereby making profert of said child, and further permitted one of state’s counsel, private prosecutor, in the presence of the jury, to take the baby from the arms' of said witness and remove it from the courtroom. Appellant objected', but stateb no ground of objection, nor any of the attendant facts. Just how this matter was presented is not stated. If the child was in its mother’s lap without objection, advantage could not be taken of it. If, however, there was an objection, as indicated here, and the child was immediately removed, and that constituted the entire performance, we are of opinion no, such error is shown as would require a reversal of the judgment. If the child was permitted to be carried under circumstances that were intended to influence the jury, or it was exhibited to the jury, or if the acts in connection with this matter were such as to bring it within the interdicted rules as laid down by the decisions of this court, the question would be presented for revision; but this bill is too general and does not state the facts so this court is enabled to review it intelligently.

Another bill recites that on re-examination the prosecutrix was permitted to testify that she let the defendant have intercourse with her because he had promised to marry her, when she had testified on cross-examination that the only reason she permitted the defendant to have -intercourse with her was that she loved him. What the grounds of objection were are not stated. In fact, this is practically all the bill does state. As it is presented it is entirely too general to require consideration. The evidence was clearly admissible.

There are quite a number of bills of about the same nature and as general in their statements. They are not diseussed.

Another bill recites that, while the mother of prosecutrix was being cross-examined by the defendant and had stated that Pearle Goode was a sister of prosecuting witness, she was asked if it was not a fact that Pearle Goode had been convicted of murdering her husband and sent to the penitentiary for 25 years, and that Levoy Goode was a bastard and a son of Pearle Goode, born before she was married. Objection was urged to this, but the purpose for which this was sought to be introduced is not shown. There are two or three bills bringing up •practically the same matter. The court finally qualifies one of the bills as follows:

“Approved with the qualification because the mother, Harritte Glasscock, testified that Elsie Glasscock had never associated with Pearle Goode and had never been around her after she was five years old.”

As this matter is presented, the court was not in error in excluding the testimony. From these bills and this qualification Pearle Goode was an elder sister of prosecutrix, but the prosecutrix had never associated with her since she (prosecutrix) was five years of age. This is not brought within the rule sought to be invoked by appellant. In fact, it would be legitimate to show in connection with prosecutrix that she had been associating with lewd women about the time of her seduction as a means or fact that might indicate to the jury that she was not seduced but was a lewd woman and willingly consented to carnal intercourse without the marital engagement as required by the statute.

There is another bill of exceptions which substantially shows that while Grace-ton Taylor was testifying the following question was propounded to him:

“I will ask you to state whether or not, while you were looking in that window at Elsie Glass-cock, if Charlie Stracner didn’t sit in Elsie Glasscock’s lap and unbutton her clothes and put his hand in her bosom?”

The district attorney objected to this because it was leading, and the court sustained the objection. It is stated that, had this witness been permitted to do so, he would have testified that defendant on the night in question did sit in the lap of prosecutrix and unbutton her clothes and put his hand in her bosom. When this occurred with relation to the date of seduction, this bill does not show, or undertake to state; but the court approves this with the statement that the state objected that the question was leading, “witness was allowed to testify fully as to what he saw.” The statement of facts, if looked ^to, would, show this particular transaction was fully investigated, and the witness Taylor testified to everything he saw through the window. This was the defendant and prosecutrix, and the testimony of this witness showed intimacy and relations, to say the least of it, of a very compromising nature.

We are of opinion the evidence is sufficient to sustain this conviction. That appellant had intercourse with the girl is conceded ; that they1 were engaged to be married is not debatable. The record is full of letters written by defendant to the girl verifying this state of case. It is unnecessary to reproduce them. The character of the girl was an issuable fact. It is deemed unnecessary to investigate that phase of it. That is a matter left to the discretion of the jury for decision. The evidence is ample that she was a girl of good character until this matter came up, and also sustained the state’s theory that no other man had intercourse with her except the defendant.

Binding no reversible error in the record, the judgment is affirmed.

On Motion for Rehearing.

The judgment herein was affirmed at the last term of this court. Motion for rehearing has been filed, in which appellant urges that this court was in error in sustaining the trial court in overruling the third application for continuance. After reviewing the record and motion for rehearing, and the former opinion, it is thought unnecessary to discuss that phase of the ease further. The same may be said with reference to the second proposition urged; that is, that this court was in error in sustaining the trial court in refusing a new trial on the ground of newly discovered evidence. We are of opinion that these matters were sufficiently discussed, and correctly decided, in the original opinion.

The third ground, as we understand it, is urged against the insufficiency of the corroboration of prosecutrix as evidenced by the letters of appellant. There can be no merit in this question, for the letters are plain and unambiguous. These matters are mentioned incidentally because all through the motion for rehearing there seems to be a dominant idea that, because appellant was only about 16 or 17 years of age at tbe time of tbe alleged seduction, therefore be was not punishable; also, that the girl alleged to have been seduced was two or three years his senior. Appellant’s main contention is that, as he was under 17 years of age at the time of the seduction, therefore he should have been relegated to the juvenile law with reference to youths of that age, and not prosecuted for the felony. The issue was not suggested on the trial, but, had it been, it could not be sustained and is without merit. Appellant, was 19 years of age when tried, and therefore the juvenile act did not apply, even had he raised such issue at the time of the trial.

Another contention in the motion is that he being a minor and under age was incapable of contracting marriage and therefore could not be amenable to the law of seduction. This is not a novel question in the courts nor in Texas. This contention was made in McCullar v. State, 36 Tex. Cr. R. 213, 36 S. W. 585, 61 Am. St. Rep. 847, and decided adversely to appellant, as it was in Merrell v. State, 42 Tex. Cr. R. 24, 57 S. W. 289; Harvey v. State, 53 S. W. 102; Hinman v. State, 59 Tex. Cr. R. 35, 127 S. W. 221. See Branch’s Ann. P. C., p. 1462, and note 2722, for collation of authorities. The same question has been decided by the courts of other states. See State v. Brock, 186 Mo. 460, 85 S. W. 596, 105 Am. St. Rep. 625, 2 Ann. Cas. 768, which is a Missouri case. Quoting from that opinion:

“Any person capable of seducing and debauching a female can make a promise of marriage, whatever his age may be, and it is sufficient that he make such a promise, and, in consequence of it, commits the crime. It is idle to say that the defendant was not capable of making such a promise at the time alleged in the information, although he may not have been competent, because of his minority, to make a valid contract— such a one as he could have been compelled by legal proceeding to comply with, or to respond in damages for its violation. It would be strange, indeed, if a person could in this way violate both law and morals, and not be held amenable to the law, but shield himself upon the ground that he was not capable of making a valid contract. Such is not the law.”

We think this opinion correctly enunciates the law.

The motion for rehearing is overruled. 
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 215 S.W. — 20
     