
    JAMES v. STATE.
    (No. 3107.)
    (Court of Criminal Appeals of Texas.
    April 20, 1914.
    Rehearing Denied June 3, 1914.)
    1. Cbiminal Law (§' 1134) — Appeal—Matters Review able.
    An exception to the court’s action on defendant’s challenge of jurors for cause would not be considered on his appeal from a conviction, where the challenged jurors did not serve on the jury, and it was not shown that any objectionable juror was forced on defendant by reason of his being required to peremptorily challenge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. § 1134.]
    2. Jury (§ 80) — List — Demand eoe Full Panel.
    In view of Code Or. Proc. 1895, art. 683, which provides that the clerk in the district court shall draw from the jury box the names of 24 jurors, or so many as there may be, and furnish a list to defendant, the overruling of defendant’s demand for a full panel of 32 names, before passing on the list which contained 27 names, was not error.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 360-366; Dec. Dig. § 80.]
    3. Jury (§ 82) — Summons — Oath oe Of-eicer — Time eor Objection.
    The officer instructed by the court to summon talesmen was not sworn as required by statute, and after the talesmen were put in the box, and .before passing on them, defendant’s counsel, on inquiry, was informed that he had not been sworn, and raised no objection then nor until after the jury had been selected. It appeared that there was no objection that :any juror was not a qualified juror, or that .the officer had acted improperly in summoning .them. Code Cr. Proc. 1911, art. 22, provides that defendant may waive any right secured to him by law, except the right to trial by jury in felony cases, held, that the time for such objection was when the jurors were summoned .and offered, and hence that the objection was made too late.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 282, 307-309, 331, 332, 348, 359, 367, 380; Dec. Dig. § 82.]
    4. Husband and Wiee (§ 313) — Abandonment Aeter Seduction and Marriage-Evidence.
    In a prosecution for abandonment after •seduction and marriage, evidence that the prosecuting witness had given birth to a child was .admissible.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. § 313.]
    .5. Husband and Wife (§ 313) — Abandonment — Evidence—Corroboration.
    In such prosecution it is not necessary that the prosecuting witness be corroborated both as to the act of intercourse and the promise of marriage, although the fact that defendant had married her after prosecution against him had been begun for seduction, and to secure a dismissal of that case, would be a circumstance tending strongly to corroborate on both issues; it being a virtual admission of those facts.
    [Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. % 313.]
    >6. Criminal Law (§ 789) — Instructions — Reasonable Doubt.
    A charge that defendant is presumed to •be innocent until his guilt is established by • competent evidence beyond a reasonable doubt, that the burden of proving guilt is on the state all through the trial, and never shifts to the defendant, and that, in case the jury have a reasonable doubt as to defendant’s guilt they should acquit, sufficiently presents the question of reasonable doubt, without applying it to each paragraph of the charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904^-1922, 1960, 1967; Dec. Dig. § 789.]
    7. Criminal Law (§ 1086) — Appeal—Record — Contents — Motion for Continuance. •
    Where the motion for continuance is not in the record, the ruling thereon cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. § 1086.]
    8. Criminal Law (§ 1090) — Appeal—Necessity of Exception.
    Matters complained of in the motion for new trial in respect to the introduction of evidence which, if objected to at the time, was not preserved by bill of exception were not so presented as to be reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789. 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    9. Criminal Law (§ 826) — Trial—Request for 'Charge — Time.
    A request for a charge not made until after the court had read his charge to the jury came too late, and there was no error in refusing it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2008; Dee. Dig. § 826.]
    10. Husband and Wife (§' 305 )— Abandonment after Seduction and Marriage —Elements of Offense.
    The statute defining the offense of abandonment after seduction and marriage authorizes the abandonment of the woman by the man only for such acts of intercourse committed after marriage by her as would entitle him to a divorce; the law condones his past offense if he marries and lives with and supports her, and it also requires of him to condone all her acts prior to the marriage, and if, after he had seduced her, she, between that time and the time he married her, again fell, it would not justify him in abandoning her, as, having been guilty of the first wrong, he must bear its consequences. .
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1103; Dec. Dig. § 305.]
    11. Husband and Wife (§ 313) — Abandonment — Appeal—Verdict.
    In a prosecution for abandonment after seduction and marriage, where defendant’s testimony to show that prosecutrix was not chaste when he was alleged to have had his first intercourse with her was to the effect that she in her own home, in the presence of her visitors, a young lady and a young man, openly and flagrantly engaged in an act of intercourse with defendant’s brother, who never told defendant when they were trying to send him to the penitentiary, yet told him immediately after his marriage, was so unreasonable and contrary to all human experience that a conviction would not be disturbed.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. § 313.]
    Appeal from District Court, Delta County; Wm. Pierson, Judge.
    Finis James was convicted of abandonment after seduction and marriage, and he appeals.
    Affirmed.
    
      Sturgeon & Beauchamp, of Paris, for appellant. O. 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 the offense of abandonment after seduction and marriage.

In the first two bills of exception it is shown that appellant challenged two jurors for cause, when they answered that they were “prejudiced against the crime of seduction.” The bills further show that the jurors did not know appellant, and had no prejudice against him; had no opinion in the case; knew nothing about the case and nothing about appellant. The fact that they had antipathy to the crime or offense of seduction is not surprising. Nine-tenths or more of the citizenship of Texas would answer the question in the same way, and, if this disqualified them from jury service, then only libertines would be qualified jurors in that character of case, and even some of them would answer that they did not believe it right to debauch a girl under a promise of marriage. It is further shown in these bills that these two jurors also answered that, one witness being a man and another witness a woman, they would give more credence to the testimony of the woman than they would to the man. This is a common failing of mankind. However, it is not necessary to discuss this question, as neither of these men served on the jury, and it is not shown that any objectionable juror was forced on appellant by reason of his being required to peremptorily challenge these men. Grissom v. State, 8 Tex. App. 386; Wilson v. State, 32 Tex. Cr. R. 22, 22 S. W. 39; Kramer v. State, 34 Tex. Cr. R. 84, 29 S. W. 157; Burrell v. State, 18 Tex. 713.

It appears that only 27 jurors were on the list furnished appellant; that being all the men in the jury box. Appellant demanded a full panel of 32 names before passing on the lists. The court committed no error in overruling the motion. Article 683, Code of Criminal Procedure; Burfey v. State, 3 Tex. App. 519; Bratt v. State, 41 S. W. 624.

It appears that, when the officer waiting on the court was instructed to summon talesmen, he was instructed as to his duties, but not sworn as required by law. It further appears that, when a portion of the talesmen were put in the jury box, and before passing on them, one of defendant’s attorneys asked the officer if he had been sworn to summon jurors in the ease, and, upon being informed that he had not, he did not then raise a,ny objection, but, after the jury had been selected, he then called the court’s attention to the fact that the officer had not been sworn who summoned the jurors; but the court says that at the time no objection wás made that the jurymen, or either of them, were not qualified jurors, nor that the officer had acted improperly in the premises in'the shmmoning of the jury in any way whatsoever. The statute requires that the oath be administered, and a failure to administer it has been held to be reversible error when the objection is timely made; that is, when the jurors were summoned and offered, the defendant should then have challenged them upon the ground that the officer who summoned them had not been administered the oath as required by law. Article 22 of the Code provides that the defendant may waive any right secured to him by law, except the right of trial by jury in felony cases, and the defendant cannot sit idly by until after the jury has been selected and then for the first time offer such objection, when the record affirmatively discloses that he was aware of such fact before the final completion of the jury. Of course, if it was shown that the officer had in any way acted improperly, or the jurymen thus selected were prejudiced, or that any right of appellant had been injuriously affected, reversible error would be presented. Hurray v. State, 21 Tex. App. 466, 1 S. W. 522.

Evidence was admitted that the prosecuting witness, Mamie Lee James, had given birth to a baby, and appellant requested the court to instruct the jury that said evidence could not be considered. In the case of Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477, this contention was held adversely to appellant, and the testimony held admissible; and that case has since been followed.

Another charge requested was that the prosecuting witness must be corroborated both as to the act of intercourse and the promise of marriage. In the cases of Williams v. State, 59 Tex. Cr. R. 349, 128 S. W. 1120, and Nash v. State, 61 Tex. Cr. R. 276; 134 S. W. 709, this question is discussed at length, and held adversely to appellant. These cases have been followed in all opinions rendered since that date, if not prior thereto, and we do not deem it necessary to again discuss the matter. In this case, appellant having married the prosecutrix, after prosecution against him had been begun for seduction, to secure a dismissal of that case, this would, however, be a circumstance tending strongly to corroborate on both issues; it being a virtual admission of those facts.

The first objection to the charge is that the court does not fully set out the law as to corroboration of accomplice in his charge. The charge as given has been frequently approved by this court King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135; Brown v. State, 57 Tex. Cr. R. 570, 124 S. W. 101; Hinson v. State, 53 Tex. Cr. R. 147, 109 S. W. 174; Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 127.

The next complaint is that the court does not apply the law of reasonable doubt. The court instructed the jury:

“The law‘ presumes the defendant to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and the burden of proving guilt is on the state throughout the trial of the case, and never shifts to the defendant, and, in ease you have a reasonable doubt as to the defendant’s guilt, you will acquit him.”

This sufficiently presented the issue, so that it' was not necessary to apply reasonable doubt to each paragraph of the charge.

There is no motion for continuance contained in the record; therefore this matter is not presented in a way we can consider it. There are a great many matters complained of in the motion for new trial as regards the introduction of testimony; but, if objected to at the time, no bills of exception were preserved, and therefore not presented in a way we can review them.

The offense of seduction is alleged to have taken place on June 5, 1912, and the prosecuting witness swears that the first act of intercourse took place on the night of the 5th of June. After the court had submitted his charge to appellant’s counsel, and after the court had read it to the jury, in addition to the special charges theretofore asked, appellant then requested the court to give the following special charge:

‘‘That if they should believe from the evidence that Mamie Lee Newman had sexual intercourse with any one after the 5th day of June, 1912, being the day alleged in the bill of indictment, which the defendant is charged with seducing the said Mamie Lee Newman, and the defendant married her as alleged in the bill of indictment in this case, not knowing of such sexual intercourse, and that he married her in good faith, believing her to be a virtuous woman, and that after marriage, if he was informed that she was guilty of such sexual intercourse, and that is the reason he abandoned her, if he did abandon her, then I instruct you that he would not be guilty of abandonment after seduction'and marriage, or, if you have a reasonable doubt about same you will acquit him.”

As this request for this charge was not made until after the court had read his charge to the jury, it came too late, and would have brought undue influence to its provisions, if it had been the law, and therefore there was no error in refusing it. But we do not think it presents a correct proposition of law, and therefore the court properly refused it, regardless of the time when it was presented to him. It is seen that it requests the court to charge the jury that if, after appellant had seduced the young lady, she had intercourse with any other person, to acquit. The statute defining the offense of abandonment after seduction and marriage authorizes the abandonment of the woman by the man only for such acts committed after marriage by her as would entitle him to a divorce. It is not contended that after marriage she has done any wrong in this regard. The law condones appellant’s past offense if he marries the injured female and lives with and supports her, and while it does this, it also requires of him to condone all the acts of his wife done prior to the marriage; and if, after he had led her astray and seduced her, if she, between that time and the time he married her, should again fail, it would not justify him in abandoning her. He, having been guilty of the first wrong, must bear its consequences.

The evidence in this case amply supports a finding that appellant had carnal intercourse with the girl under a promise of marriage, and that he married her to secure the dismissal of a case against him charging him with seducing her, and that after marriage he abandoned her; but appellant made a strenuous effect to show that she was not a chaste girl at the time he is alleged to have had the first act of intercourse with the girl. Appellant’s brother, Clark James, swears that he had intercourse with the girl prior to the time she says she had the first act with Finis James, appellant. He says that, although he was a witness in the seduction case, he had never told his brother until the day following his marriage. A Miss Ruth Woodward testifies that on that night Clark James came to see Miss Newman, the prosecutrix; that Henry Humphries came to see her; that both couples were in the same room, Miss Woodward and Humphries sitting on the bed, while the prosecutrix and Clark James were on the lounge in plain view of each, and there, while she was talking to her company, and in their presence, Clark James and Miss Newman had an act of intercourse; that she and Humph-ries were not so naughty. These occurrences are so contrary to all human experience— that a girl, in her own home, in the presence of her visitors, a young lady and a young man, would openly and flagrantly engage in such act; that the young man engaged in this act was appellant’s brother; and he never told his brother when they were trying to send him to the penitentiary, yet did tell'him immediately after his marriage — we are not surprised that the jury gave little or no credence to such testimony. Appellant earnestly insists that this raises a doubt as to appellant being guilty of seducing the girl; but it raised none in the jury’s mind, and, as we have often said, when testimony is so unreasonable, so contrary to all human experience, if the state had relied on it for a conviction, we would not permit the verdict to stand, and, although it is this time adduced in behalf of a defendant, that fact does not take its unreasonable character away from it, and we will not disturb the verdict.

The judgment is affirmed.  