
    BROWNING v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 13, 1911.
    Rehearing Denied Jan. 10, 1912.)
    1. Seduction (§ 40) — Evidence—Admissibility.
    In a seduction trial the state was properly permitted to ash prosecutrix why she submitted to intercourse.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 79; Dec. Dig. § 40.]
    2. Criminal Law (§ 1170%) — Harmless Error-Admission of Evidence.
    In a seduction trial, error in permitting the district attorney to ask prosecutrix the leading question whether, if she had not been engaged to accused, she would have submitted to intercourse, was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    3. Criminal Law (§ 406) — Evidence—Testimony Before Grand Jury.
    In a seduction trial it was not error to permit a member of the grand jury to testify that accused appeared before the grand jury as a witness and admitted that he had had intercourse with prosecutrix, though his statement to the grand jury was not reduced to writing; he not having been under arrest.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 92(1-927; Dee. Dig. § 406.]
    4. Criminal Law (§ 1090) — Review—Application for Continuance.
    Action in overruling an application for continuance cannot be considered in the absence of bill of exceptions thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2817; Dec. Dig. § 1090.]
    5. Criminal Law (§ 1120*) — Review—Admission of Evidence.
    Grounds of motion for new trial based on the admission of testimony are not reviewable where they fail to state the testimony, and no bill of exceptions was reserved to the court’s rulings.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    6. Criminal Law (§§ 7.63, 764) — Instructions — Weight of Evidence.
    An instruction defining seduction as the leading of an unmarried female under 25 years of age away from.the path of virtue, etc., was not erroneous as being on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.]
    7.Criminal Law (§ 1064) — Objections— Sufficiency.
    Objection, in a motion for new trial, that the court erred in a specified paragraph of its charge, wherein it submitted the question as to whether prosecutrix’s testimony was corroborated, is too general to be reviewable on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dee. Dig. § 1064.]
    8.Criminal Law (§ 1043) — Objections— Sufficiency.
    Objections to instructions that they do not correctly state the law, and that the trial court erred wherein it attempted to submit defendant’s theory, are too general to be reviewable.
    [Ed. Note. — For other cases Law, Cent. Dig. §§ 2654, 2655; 1043.] see Criminal Dec. Dig. §
    9.Criminal Law (§ 1137) — Invited Error —Right to Complain.
    Accused cannot complain of an instruction substantially the same as that requested by him.
    [Ed. ‘ Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.]
    10. Criminal Law (§ 829) — Trial—Instruc-tio ns — Refusal.
    Instructions substantially covered by those given are properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    11. Seduction (§ 45) —Evidence — Sufficiency.
    Evidence held to sustain a conviction for seduction.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 80-82; Dec. Dig. § 45.]
    12. Criminal Law (§ 940) — New Triah— Newly Discovered Testimony.
    One convicted of seduction was properly denied a new trial for newly discovered testimony relating to circumstances creating merely a suspicion that prosecutrix had been indiscreet after the offense.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 940.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Bedford Browning was convicted of seduction, and he appeals.
    Affirmed.
    J. S. Sherrill and Evans & Carpenter, 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
    
   HARPER, J.

Appellant was indicted by tbe grand jury of Hunt county, charged with seduction. When tried he was convicted and his punishment assessed at three years confinement in the penitentiary.

1. There are but two bills of exception in the record. In one it is complained that the prosecuting witness, Dollie Thorn-berry, was asked to “tell the jury why it was you submitted to intercourse with him (meaning defendant) and give your reasons for doing it.” The witness answered, “Well, it was because I loved him, had all confidence in him, and because I didn’t have any idea he would do me like he has done, and I loved him better than I loved anybody else, and never had any idea of his doing as he has done.” Whereupon the district attorney asked the witness, “If you had not been engaged to marry him at that time, would you have given him the privilege of having intercourse with you?” to which the witness answered, “No, sir.” The first question is not objectionable, and, while the second may be leading in its nature, yet . in this character of ease, especially in the light of the entire record, it is not such error as would be cause for a reversal of the judgment, as all the testimony elicited thereby is clearly admissible in evidence.

2. The second bill complains that a member of the grand jury was permitted to testify that appellant appeared before them as a witness and admitted that he had sexual intercourse with the prosecuting witness. The court in approving this bill states: “The only objection made to the introduction of this evidence was that the statement made by defendant before the grand jury was not reduced to writing and signed by defendant. The evidence showed that the defendant was not under arrest at the time he went before the grand jury, but that he appeared before said body and after due and legal warning made his voluntary statement.” The defendant excepted and filed this bill with this indorsement thereon, and we presume it correctly states the facts. A voluntary statement made by a defendant, when not under arrest, in regard to the case on trial, is always admissible when offered by the state, and that this statement was made under the sanction of an oath could not affect its admissibility, if voluntarily made.

We cannot consider the action of the court in overruling defendant’s application for a continuance, as no bill of exception appears in the record reserved to the action of the court in so doing.

3. Neither can the court consider the grounds alleged in the third, fourth, fifth, and sixth paragraphs of the motion for a new trial. They all complain of the admissibility of certain testimony, without stating the testimony, and no bill of exception was reserved to the action of the court in admitting it.

4. In the eighth paragraph of the motion the defendant complains of the following paragraph of the court’s charge: “You are instructed that ‘seduction,’ as used in the statute, means to lead- an unmarried female under 25 years of age away from the path of virtue; to entice or persuade her by means of a promise of marriage to surrender her chastity and have carnal intercourse with the man making the promise. The promise of marriage by the man, and the yielding of her virtue by the woman, in consideration of that promise, constitute the gist of the offense. The offense is not complete until the female has been seduced, that is, corrupted, deceived, drawn aside from the path of virtue which she was pursuing.” The objections being that it is on the weight of tbe testimony, and was calculated to make the jury believe that the court was of the opinion that Dollie Thornberry was a virtuous female. The charge is not subject to these criticisms. It is but a definition of the term “seduction,” and is merely stating the elements of the offense, and there is-nothing therein to indicate to the jury that the court had any opinion of the virtue of the female alleged to have been seduced.

5. The ninth and tenth grounds of the motion state the court erred in the third and fourth paragraphs of its charge, “wherein it submitted to the jury the question as to whether or not the testimony of the prosecutrix was corroborated.” It was proper for the court to submit this issue to the jury, and, as it is not attempted to point out any error in the charge, these grounds are too general to be considered by this court.

6. Paragraphs 10a and 10b are too general to be considered, as therein it is not attempted to point out any error in the charge, merely stating “it does not correctly state the law,” and erred “wherein he attempted to submit defendant’s theory.”

7. The court_ charged the jury in a supplemental charge: “If you believe from the evidence that the defendant and Dollie Thornberry were engaged to be married at the time of the act of carnal intercourse between them, if any, but that the said Dollie Thornberry was not induced to have carnal intercourse with the defendant by reason of such engagement, if any, but that she submitted to him, if she did, relying upon the conditional promise that the defendant would marry her if anything happened, if any such promise was made, or if you have a reasonable doubt as to this issue, you will acquit him.” This charge is almost in the language of a couple of special charges requested by defendant, and-presents one theory of the case relied upon by defendant, and, the defendant having requested that this theory of the case be presented, he cannot now complain that the court did do so in a supplemental charge. In addition to this supplemental charge, the court in his main charge instructed the jury: “If you believe from the evidence that the defendant had carnal knowledge of the said Dollie Thornberry, on or about the date alleged in the indictment, but, if you further believe that at the time of said act of carnal intercourse, if any, that the defendant had not previously promised to marry her, the said Dollie Thornberry, or if you have a reasonable doubt as to this issue you will acquit him, or if you believe from the evidence that the defendant and the prosecu-trix, Dollie Thornberry, at the time of the act of carnal intercourse, if any, were not engaged to be married, and that the said defendant only promised to marry her, the said Dollie Thornberry, in the event she became pregnant, and that she, the said Dollie Thornberry, submitted to the defendant on this conditional promise,, if any, or if you have a reasonable doubt as to this issue, you will acquit him.” These paragraphs of the court’s charge covered the entire theory of defendant’s defense, and all that was proper to be given requested in the special charges, and there was no error in refusing to give the special charges, they having been covered in the main charge, and in the supplemental.

8. Appellant insists that the testimony is insufficient to support the conviction. The prosecuting witness testifies to an engagement to marry; in this she is corroborated by her brother, and by the witness Roy Hodge. She testifies that she relied on this promise and that it was the inducing cause for her to submit to him. In the fact that appellant had carnal intercourse with her at the time she states in her testimony, she is corroborated by two members of the grand jury, who state that defendant appeared before the grand jury and was told that they were investigating a charge of seduction against him, and then told him that he did not have to make any statement, and that, if he did do so, it could be used against him, and he voluntarily stated that he had intercourse with the prosecuting witness, placing it, according to Mr. Elliott, at the very time and place alleged by the prosecuting witness. The witness states defendant denied any promise of marriage, but one of the witnesses states he admitted having intercourse with her on several occasions. Thus in this case the witness is corroborated by positive testimony both as to the promise of marriage and as to the act of intercourse. The question of whether the promise of marriage was the sole inducing cause was fairly and fully submitted by the court to the jury, and while the testimony of the state and the defendant, on this point, as well as a promise of marriage, is conflicting, yet the jury, with the issue fairly submitted to them, finds against appellant, and it is not proper for us to disturb that finding, if there is evidence to support it, and in this ease there is evidence of that character beyond question.

9. The ground in the motion alleging newly discovered .testimony does not state facts which would authorize us to disturb the verdict. The affidavits of witnesses that they had seen the prosecuting witness at different times in the winter and spring, and nothing in her appearance indicated pregnancy, nor the affidavit of the physician that he, from appearances, did not think the prosecuting witness was more than four or five months advanced in pregnancy, at the time of trial, do not alter the fact that the prosecuting witness testifies to an act of intercourse with defendant under promise of marriage at a given date, and that defendant admitted such intercourse at said time, if we are to believe the members of the grand jury. It .could make no difference if the act of intercourse with the defendant was the first act of intercourse, and prosecuting witness was induced to submit thereto by the conduct of defendant under a promise of marriage, that subsequent to this date “one evening after school she was seen out under some trees talking to Cyrus Graham, and as the teacher went to leave he told her it was against the rules to remain and talk with the boys after school.” None of the affidavits filed, alleging newly discovered evidence, deal with events at the time of or prior to the act of intercourse on which this prosecution is based, but all relate to subsequent matters. That at this time and always prior to that time the prosecuting witness bore a good reputation for virtue and chastity is testified to by a number of citizens who had known her from her childhood, and there were none to say that she bore other than a good reputation in that respect up to that time. To pick out “suspicious circumstances” occurring subsequent to this time would not be grounds for a new trial, when no witness alleges anything that would show her guilty of any real wrongful act in their affidavits.

Appellant’s able counsel have filed a brief in which they make an eloquent plea in behalf of the young man, and it is true, as they say: “To be incarcerated in the penitentiary for a term of years is a matter of the utmost concern to appellant. To be taken from his young wife and confined in a felon’s cell is a punishment which ought not to be inflicted on him, except on the most clear and convincing proof. It will take from him the beauty, the hope, the ambition of life, and leave it only an empty shell. No words can portray the anguish which such punishment must bring to his wife.” But who can picture the woe of Dollie Thornberry? It had been better the defendant had tied a millstone around her neck and thrown her into the sea. Her life in the future is but a hell here on earth — shunned by and denied association with womankind, to live a life of isolation, want, and drudgery. If there was but one case of this kind, it might be that those in whose hands are placed the power to pardon could say the injury has been done, and the act was committed while both were young and thoughtless, and it will make the young man no better citizen to confine him in penitentiary walls. But to one who sees the records that come to this court, when the jury, who sat in judgment in the case, has found that a young girl has been led from the path of virtue by the blandishments and seductive wiles of a defendant, and the evidence justifies that finding, the ease appears in a different light, and we will not disturb the verdict, for this is a crime that should be suppressed in so far as it lays in the power of man, and there is no surer way to accomplish this than to let all men know that punishment for wrongdoing is sure and certain.

The judgment is affirmed.  