
    BISHOP v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.
    On Motion for Rehearing, March 6, 1912.)
    1. Seduction (§ 40) —Evidence—Birth os’ Child.
    In a prosecution for seduction, prosecu-trix may testify that a child was born to her on a specified date.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 76; Dec. Dig. § 40.]
    2. Seduction (§ 44) — Evidence — Subsequent Intercourse.
    In a prosecution for seduction, prosecu-trix may testify to subsequent intercourse between herself and defendant.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 78; Dec. Dig. § 44.]
    3. Seduction (§ 44) —Evidence—Association Between Parties.
    Prosecutrix, in a prosecution for seduction, having fully detailed the extent of her association with defendant, was properly permitted to testify that she had associated with defendant “like young people generally do.”
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 78; Dec. Dig. § 44.]
    4. Seduction (§ 50) — Corroboration — Prosecutrix — Instructions.
    Under Code Cr. Proc. 1895, art. 769, providing that there can be no conviction on the testimony of an alleged seduced person, unless corroborated by other evidence, “tending to connect defendant with the offense charged,” an instruction that corroborative evidence need not be direct and positive, independent of prosecutrix’s testimony, but may consist of such facts and circumstances as tend to support her testimony, and which satisfy the jury that she is worthy of credit to the facts essential to constitute the offense of seduction, as previously defined, etc., was erroneous for failure to require that such corroborating evidence be such as tended to connect defendant with the offense charged.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 90; Dec. Dig. § 50.]
    5. Seduction (§ 50) — Prosecutrix—Prior Chastity — Instructions. '
    Where, in a prosecution for seduction, many circumstances were shown indicating lack of prior chastity on prosecutrix’s part, it was error for the court to omit to charge that, if prosecutrix was unchaste at the time the offense was committed, defendant could not be convicted.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 91; Dee. Dig. § 50.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Willie Bishop was convicted of seduction, and he appeals.
    Reversed and remanded.
    Callaway & Callaway and J. R. Stubble-field, for appellant. J. R. McClellan, Dist. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted by the grand jury, charged with the offense of seduction. The jury found him guilty, and assessed his punishment at three years confinement in the state penitentiary.

1. In the first bill of exceptions appellant complains that the prosecuting witness was permitted to testify that a child was born unto her on the 30th day of August, 1910. There was no error in admitting this testimony under the facts of this case as testified to by the prosecuting witness. Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477.

2. Neither did the court err in permitting the prosecuting witness to testify to subsequent acts of intercourse between her and appellant. Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 222.

3. There was no error, under the evidence in this ease, in permitting the question: “Had you been associated with him (defendant) like young people generally are?” Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215. The qualification of this bill by the court, that the prosecuting witness on direct and cross-examination had fully detailed the extent of her association with appellant, would authorize the question, under the decisions of this court. These are all the bills of exception in the record, but in the motion for a new trial there are a number of complaints to the charge of the court and the failure to give special charges requested.

4. In the seventh ground of the motion for a new trial appellant complains of the following paragraph of the court’s charge: “You are, however, instructed that corroborative evidence need not be direct and positive independent of the prosecutrix, Miss Ethel Harrison’s testimony, but 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, will fulfill the requirements of the law as to corroboration, and it is for you to say from all the facts and circumstances in evidence before you' whether she has been sufficiently corroborated.” The error assigned is that the charge authorized the conviction of defendant if the corroborative evidence was such as tended to support the testimony of the prosecuting witness and satisfied the jury that she was worthy of credit, and did not require that the corroborative evidence be such that in addition thereto it tended to connect the defendant with the commission of the offense. This criticism seems to be well founded, for article 769 of the Code of Criminal Procedure of 1895 provides that no conviction shall be had upon the testimony of the alleg^l seduced person unless the same is corroborated by other evidence tending to connect the defendant with the offense charged. In Wisdom v. State, 45 Tex. Cr. R. 215, 75 S. W. 22, a charge almost in terms like the one herein quoted is condemned, and it is held that the corroborative testimony must be such as not only to be convincing as to her credibility but must also tend to connect the defendant with the commission of the offense, and the court should so instruct the jury.

5. Appellant also complains that the court erred in failing to charge the jury that, if the prosecuting witness was unchaste at the time of the commission of the alleged offense, defendant would not be guilty, and erred in failing to give defendant’s special charge presenting that issue. There is no positive testimony in the record that the alleged seduced female was lacking in chastity, but this may be shown by circumstances the same as the prosecuting witness can be corroborated by circumstantial evidence. A number of circumstances were proven by appellant that possibly raised this issue, and the court should have instructed the jury affirmatively that if, at the' date of the alleged seduction, the injured female was unchaste and lacking in virtue, the defendant would not be guilty.

We have carefully reviewed all the other assignments in the motion for a new trial, and they present no error; but, for the errors above pointed out, this judgment is reversed, and the cause is remanded.

On Motion for Rehearing.

This case was reversed and remanded on a former day of this term, and the state has filed a motion for rehearing, and cites us to the case of Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006, and calls our attention to the fact that the paragraph of the charge of the court on accomplice testimony is an exact copy of a similar paragraph contained in the Beeson Case. The objection made to the charge in the Beeson Case was that the paragraph “was upon the weight of the testimony,” and this court, in an opinion by Judge Oobb, held that objection not tenable, and properly so. In that case no objection was made that the charge did not require the corroborating testimony to be such as “tended to connect the defendant with the commission of the offense,” and this court on appeal passes only on such objections as are preserved by bill of exceptions or in the motion for new trial. This is mandatory on us under article 723. In this case the specific objection is made that the charge was erroneous in that it authorized the conviction of defendant if the corroborative evidence was such as tended to support her testimony and which satisfied the jury she was worthy of credit as to the facts essential to constitute the offense of seduction, without also instructing them that the corroborative evidence must tend to connect defendant with the commission of the offense. In the Beeson Case, cited by the state’s attorney, it is said: ‘‘It may be insisted that the court, in telling the jury that it was sufficient corroboration if facts or circumstances tended to support her testimony and satisfied them she was worthy of credit, limits the jury to the consideration of whether she was worthy of credit and not whether there were shown by other witnesses such facts as had a tendency to show defendant guilty. If the charge bears that construction, it is erroneous, though perhaps not upon the ground of being on the weight of evidence, but of substituting a test other than the statutory test for determining the matter of corroboration. The accomplice is not corroborated by proof that she is worthy of credit in general, or of good repute. Wisdom v. State, 45 Tex. Cr. R. 215, 75 S. W. 22. The statute does not contemplate any kind of proof about or concerning her, but proof about the defendant and the crime. Some fact or circumstance, not coming from her, must attach to him and connect him with the crime testified of by her. He, and not the accomplice, is on trial. She, rather her testimony, must be corroborated. He must be connected with the offense by the same testimony that corroborates herj as to him to make out guilt, but as to her, as a witness, the corroboration proves nothing. It removes the impotency of her testimony, and permits a conviction if the jury believe her testimony and she has covered all .the facts, not because there is corroboration merely, but also that corroboration has removed the bar between the jury’s belief of her testimony and their conclusion and verdict of guilt.”

The statute requires that the corroborating testimony, to be sufficient, must tend to connect the defendant with the commission of the offense alleged, and the charge of the court should so instruct the jury. See, also, Oates v. State, 51 Tex. Cr. R. 449, 103 S. W. 859; Newman v. State, 55 Tex. Cr. R. 376, 116 S. W. 1156; Barrett v. State, 55 Tex. Cr. R. 182, 115 S. W. 1187; and Maibaum v. State, 59 Tex. Cr. R. 386, 128 S. W. 378.

The motion for rehearing is overruled.  