
    McLAURIN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 10, 1912.
    State’s Rehearing Denied May 8, 1912.)
    1. Criminal Law (§ 761)—Instructions— Assumption of Fact.
    An instruction on a trial for seduction that, if prosecutrix had carnal intercourse with some other person before she had intercourse with accused, he must be acquitted, was erroneous, as charging that accused had had intercourse with prosecutrix, which was an issue of fact under his plea of not guilty.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1738, 1754-1764, 1771; Dec. Dig. § 761.]
    2. Seduction (§ 29)—Elements of Oepense.
    To constitute seduction, there must have been an act of intercourse induced by a promise of marriage.
    [Ed. Note.—For other cases, see Seduction, Cent. Dig. § 53; Dec. Dig. § 29.
    
    For other definitions, see Words and Phrases, vol. 7, pp. 6389-6393.]
    Appeal from District Court, Lynn County; W. R. Spencer, Judge.
    Hugh McLaurin was convicted of seduction, and he appeals. Reversed and remanded.
    
      G. E. Lockhart, L. W. Dalton, and J. F. Cunningham, for appellant. J. E. Vickers, Dist. Atty., W. H'. Bledsoe, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NU5£BER-.in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with the offense of seduction, was tried and convicted, and his punishment assessed at two years’ confinement in the penitentiary.

Appellant earnestly insists in his motion for new trial, and in his brief, that the evidence is insufficient to sustain the conviction. We have carefully reviewed the record, and find that the testimony of the prosecuting witness would make a case of seduction; that the testimony of the father and mother would tend to connect the defendant with the commission of the offense. However, the state could add materially to the strength of its case, if it was shown (if it can be done) that appellant and the prosecuting witness were both at the residence of John Mc-Laurin at the time and on the occasion when the prosecuting witness says the first act of copulation took place.

The court instructed the jury that, if they believed that the prosecuting witness had carnal intercourse with some other person before she copulated with defendant, they would acquit him. This was in effect the court instructing the jury that appellant had copulated with the prosecutrix. Under his plea of not guilty, this was an issue of fact in the case.

There could be no seduction unless there was an act of copulation, and that, too, induced by a promise of marriage.

We have gone over the record and find no other error, but, on account of the error above pointed out, the judgment is reversed, and the cause is remanded.  