
    POLK v. STATE.
    (No. 6470.)
    (Court of Criminal Appeals of Texas.
    Jan. 25, 1922.
    Rehearing Denied March 22, 1922.)
    1. Criminal law <&wkey;lll2, 1144(19) — Qualified bill of exceptions cannot be impeached by ex parte affidavit; assumed that judge will allow correct bill of exceptions.
    The Appellate Court must assume that the trial judge 'will allow an accused, on trial, correct bills of exception, reflecting truthfully the occurrences at the time, and, when this is attempted to be done by a qualification, and is accepted and filed by accused, the truth of the qualifications cannot be impeached by an ex parte affidavit.
    2. Criminal law <&wkey;I09l (5) — -Bill of exceptions insufficient for not showing expected answer to excluded questions.
    Bills of exceptions showing that the court declined to permit prosecutrix in seduction to answer certain questions by counsel for accused, and not showing what the expected answer would have been, are insufficient.
    3. Witnesses <&wkey;3!8 — Not improper to call witness to refute insinuation from questions to prosecutrix when defense failed to follow it up.
    In a prosecution for seduction, where the prosecutrix was asked whether she had not been haying, for a year or two, promiscuous intercourse with men in the community — naming seven, and some of them present in court— to which she answered, “No,” and the defense did not call any of them to prove the insinuation, it was not improper for the state to call on some of the witnesses in refutation.
    4. Seduction <&wkey;42 — Reputation of prosecutrix subsequent to seduction not inquired into.
    In a prosecution for seduction, the question of the reputation of prosecutrix subsequent to the seduction cannot be inquired into.
    5. Seduction <&wkey;46 — Corroboration of prosecu-trix’ testimony may be by circumstantial evidence.
    A conviction for seduction may be sustained where the testimony of prosecutrix is corroborated by circumstantial evidence.
    On Motion for Behearing.
    6. Criminal law <&wkey;l 160 — Verdict supported by evidence not disturbed on appeal unless clearly erroneous.
    Where the jury have solved the questions presented by the testimony under proper charge, and have found defendant guilty, and the verdict approved by the trial judge, and there is sufficient evidence in the record, if believed, to sustain the verdict, it will not be disturbed on appeal unless under the facts it is clearly erroneous.
    Appeal from District Court, Sabine County; J. T. Adams, Judge.
    Earl Polk was convicted of seduction, and he appeals.
    Affirmed.
    Minton & Lewis, of Hemphill, for appellant.
    B. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for seduction. Punishment three years in the penitentiary.

An unfortunate situation seems to have arisen with reference to the bills of exception. Quite a number of bills appear in the record with qualifications and explanations appended. These bills were approved on the 25th day of June, 1921, and were filed the 7th day .of July. One attorney representing appellant, on the 16th day of July, 1921, makes an affidavit to the effect that the qualifications attached to the bills are not supported by the record; that they are unfair and unjust to appellant; and attaches to the affidavit the question and answer statement of facts upon the trial of the case and asks the court to examine same in connection with his affidavit to verify the truth of his criticism of the qualifications. We had occasion in Jones v. State, 89 Tex. Cr. R. 6, 229 S. W. 865, and in Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869, to discuss at some length bills of exception and the effect of accepting the same with the qualifications attached thereto, and the proper procedure in the event attorneys declined to accept the bills as qualified. In the Hunt Case, supra, the following language was used:

“The judge ought not to have filed the bills as qualified and explained by him without appellant agreed to accept them as so modified; however, when appellant ascertained that this had been done, his proper course would have been a motion to withdraw them from the files, and request the judge to cancel the qualifications and mark them ‘refused,’ with the further request that the judge prepare and (file bills in lieu thereof; then, if the judge declined to do so, he could have resorted to proper ‘bystanders,’ or by affidavits have shown that he had been denied his bills.”

It was not intended to intimate by the expression, “by affidavits showing that he had been denied his. bills,” that the bills as qualified could be impeached- by affidavits, but that affidavits could be resorted to where the trial judge had declined to file his bills in lieu of those marked ‘refused’ in order to show that thereby appellant had been deprived of his bills altogether. In a later case, Donohue v. State (Tex. Cr. App.) No. 6532, decided January 11, 1922) 236 S. W. 86, we had occasion again at some length to express our views as to' the proper procedure where the trial judge denied the occurrence of the matters to which the bill related, or denied that any exception had been taken at the time. Attorney for appellant, in requesting this court to examine in connection with his affidavit the entire question and answer record of the proceedings upon the trial; is asking us to assume a burden which we must decline. The bills of exception, so far as the record discloses, were accepted by appellant with the qualifications and explanations attached thereto, and are filed as part of the record. We must assume that the trial judge will allow, to an accused on trial fair, full and correct bills of exception reflecting truthfully the occurrence at the time. When this is attempted to be done by a qualification or explanation, and is accepted and filed by appellant as his bill of exception the truth of the qualifications or explanations cannot be impeached by an ex parte affidavit. It will therefore be necessary for us to consider the bills in connection with the qualifications and explanations attached.

By bills ‘of exception Nos. 1, 2, 3, and 4 appellant complains that the court declined to permit prosecutrix on cross-examination to answer certain 'questions propounded to tier by counsel for appellant. Regardless of the qualifications, the bills are totally insufficient to be considered by this court. None of them show what the expected answer of the witness would have been. In this state of the record it is impossible for •the reviewing court to know whether any injury has been done, even though the testimony sought was not permitted.

“A bill of exceptions taken to the refusal of the court to permit a witness to answer a question whether on direct or cross-examination must show what the answer of the witness would have been in order to entitle it to consideration on appeal.”

Under this headnote on page 136 of Branch’s Anno. P.' C. are more than 30 cases cited supporting the note. Recent cases to the same effect are Lane v. State, 89 Tex. Cr. R. 140, 229 S. W. 547; Hill v. State, 89 Tex. Cr. R. 450, 230 S. W. 1005; Crisp v. State, 89 Tex. Cr. R. 502, 231 S. W. 392.

Bills of exception Nos. 6, 7, 8, and 9 raise the same question, and will, be treated together. After prosecutrix had testified that she had submitted to carnal intercourse with appellant for the first time in May, 1919, under a promise of marriage, counsel for appellant subjected her to a severe cross-examination, and by many questions imputed a want of chastity to her, which questions, if answered in the affirmative by her, would have practically detroyed the state’s case. She was asked—

“if she did not at one time, before she ever became acquainted with appellant, permit one Judge Bennett to put his arms around her and hug and kiss her, and take her on his lap, at Chester Bennett’s house, and if Chester Bennett did not reprimand them and tell them such conduct would not be permitted in his house?”

She was further asked:

“As a matter of fact, isn’t it true that over a period of more than a year and a half or two years you had been promiscuously having intercourse with men in the community — I will say with Bud Cohn, Aaron Boyett, Judge Bennett, Avery Hogan, L. J. Hunnieut, and Dewey Buckley ?”

All these questions were answered by pros-ecutrix in the negative. After the state had rested its case appellant failed to call any witness to affirm the truth of the matters suggested in the questions, although some of the parties named were present in court. Upon the defendant resting the state called Judge Bennett, who testified that no such thing as intimated by the question ever occurred between him and prosecutrix at the house of Chester Bennett, and Chester Bennett testified to the same effect. The state was also permitted to prove by Dewey Buckley and Bud Cohn that they, nor either of them, ever at any time had carnal intercourse with prosecutrix. Objection was urged to the testimony of all these witnesses upon the ground that the same was not in rebuttal to any testimony offered by appellant, ahd because the same was prejudicial and injurious to appellant, and was inadmissible because it tended to improperly bolster up the testimony of the prosecutrix. Appellant rests his contention that such testimony was inadmissible upon the rule stated in Conway v. State, 33 Tex. Cr. R. 327, 26 S. W. 401, as follows:

“No principle in the law of evidence is better settled than the one enunciated in the rule that testimony in chief of any kind, tending merely to support the credit of the witness, is not to be heard except in reply to some matter previously given in evidence by the opposite party to impeach it. When this evidence was introduced, nothing had been given in evidence by defendant to impeach the credit of the witness, and it was for that reason clearly incompetent.”

As to the correctness of the general rule stated in the Conway Case, there can be no question. It is supported by many authorities collated in Branch’s Crim. Law, § 875, pp. 557, 578, and also by numerous text-writers. We do not agree with appellant as to the application of the rule to the facts of the instant case. We think it is an exception to the general rule, and more akin to the doctrine announced in Phillips v. State, 49 Tex. App. 158, and Harris v. State, 49 Tex. Cr. R. 338, 94 S. W. 227. These cases are based upon the cross-examination of a stranger of such character as tended to bring him into disrepute before the jury, and indirectly seriously attack his testimony, which was intended to convey to the mind of the jury that his whole testimony was false. While it is true the prosecutrix may not have been a stranger in the community where she testified, yet she occupied a relation to the case different from that of the ordinary witness. That the questions asked tended to bring her into disrepute before the jury, and to intimate that her averments as to her previous chastity were false, there can be no question. That if the questions had been answered in the affirmative by her it would have destroyed the state’s case there can be no doubt. It occurs to us the conditions were somewhat similar to those discussed by us in Rosa v. State, 86 Tex. Cr. R. 646, 218. S. W. 1056, with the exception that in the Rosa Case the conduct complained of was that of the county attorney, and in the instant case the questions propounded were by counsel for appellant. While Rosa was testifying as a witness in his own behalf he was asked if he had not been convicted in Hoboken of a felony and served a term in the penitentiary in New York, if he had not in the state of New York gone by a different name than that of Rosa, and many other questions of like import. No effort was made by tbe state to follow up these questions, and tbe case was reversed because of tbe misconduct of tbe county attorney. After tbe state bad asked Rosa tbe questions complained of, and bad then closed its case without following same up, surely it could not be insisted with any logic that, if Rosa bad bad a witness present who could have denied tbe imputations contained in tbe questions, be' should not have been permitted to give tbe jury tbe benefit of tbe denial. So, in tbe instant case, tbe attack directed at tbe prosecutrix was not directed at her in tbe capacity of a witness in tbe ordinary sense, but suggested matters the truth of which, if established, would have left tbe state without a case. Some of tbe very parties connected with the insinuated transactions were present, and yet appellant failed to call them to substantiate tbe truth of tbe imputations contained in tbe questions. Tbe principle appears to be sustained in Barber v. State (Tex. Cr. App.) 69 S. W. 515. In that case upon cross-examination of a witness be was asked if be bad not made certain statements, to which be replied either that he did not say that, or that he did not say it that way. On redirect examination tbe witness was permitted to state what be did say, and tbe circumstances under which be said it; tbe objection being urged that appellant bad not introduced any part of tbe statement, but bad simply asked tbe witness whether or not be bad made them, and tbe witness had answered in tbe negative. We quote from the opinion as follows:

“We do not understand that it is necessary to impeach a witness by controverting bis statement, before he can be supported. If an unsuccessful attack is made to impeach a witness, he may be supported. Unquestionably the predicate was laid here' for the contradiction of the witness. He did not absolutely deny making the statements, but admitted making them in some qualified way. Consequently it would have been admissible for the defendant to have put on witnesses testifying that appellant had made the statement in the exact terms inquired about. If he had put on one or more witnesses who failed to impeach him, we take it that this abortive attempt would have authorized the witness to be supported. However, defendant did not go so far, but the effect of his attempt was to leave the witness under the imputation that he had made some such statement as that'inquired about, in effect contravening or contradicting his evidence while on the stand. Under the circumstances, we believe it was competent for the state to show, in explanation of the witness’ answer, exactly what he said on that occasion, and how he came to say it.”

Unquestionably in tbe instant ease, while appellant did. not undertake to prove the truth of tbe matters which prosecutrix denied, yet tbe effect of bis attempt by cross-examination was to leave tbe witness under tbe imputation that she bad been having acts of intercourse with tbe parties inquired about, and was generally guilty of conduct indicating unehastity. We think no error was committed in allowing tbe state to call witnesses to refute tbe insinuations.

Prosecutrix testified that she became acquainted with appellant in February; 1919, at which time she was living with her father on what was known as tbe Boyett place; that tbe act of seduction occurred in May of that year; later on in tbe same month her family removed from the Boyett place to Lamerle. While living at Lamerle she became pregnant in February, 1920, and gave birth to a child in November of that year; prosecutrix claimed defendant to be tbe father of tbe child. After she had testified to these facts appellant offered to prove (bill of exception No. 5) by J. N. Hunter that tbe general reputation of prosecutrix for virtue and chastity was bad during the time she lived at Lamerle. This was subsequent to tbe date of the seduction, and in a community where tbe pregnancy .of prosecutrix became apparent, and where she gave birth to tbe child. Objection was urged by tbe state to tbe admission of such testimony on tbe ground that it related to tbe reputation of tbe prosecutrix since tbe time of the alleged seduction. The court permitted an examination of tbe witness on bis voir dire for tbe purpose of determining whether be was qualified to speak as to tbe general reputation of the witness, and, having developed bis testimony in full in tbe absence of tbe jury, sustained tbe objection. We make no comment upon whether tbe witness was sufficiently qualified to testify, but base our discussion upon tbe objection that tbe reputation of prosecutrix subsequent to tbe date of tbe seduction could not be inquired into. So far as we are aware this court has not spoken upon tbe exact question before us. We have made search for authorities from our own-state, and none have come to our attention. Appellant refers us to Davis v. State, 36 Tex. Cr. R. 550, 38 S. W. 174, and Creighton v. State, 41 Tex. Cr. R. 101, 51 S. W. 910, as supporting the admissibility of this testimony. Tbe cases cited, and many others, may be found in our reports bolding that proof of acts of intercourse or other acts of unehastity with other parties subsequent to tbe date of tbe alleged seduction may be shown, not as a complete defense, but to be considered by the jury in determining tbe chastity or otherwise of prosecutrix at tbe time of tbe alleged seduction. In Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967, it was held that, in order to establish the virtue of tbe female alleged to have been seduced, resort ■ could be bad to proof of her general reputation for virtue and chastity, and that in like manner tbe accused could attack her virtue, but tbe question did not arise as to whether it should be restricted to sucli reputation, at the time of or prior to the seduction. We disclaim any intention of expressing our approval of the doctrine that proof of reputation as to chastity, or otherwise, can he generally resorted to. We are considering only the question that, if permissible at all, should the inquiry be extended to a time subsequent to the date of seduction. In People v. Brewer, 27 Mich. 134, this exact question was before the court, and Justice Cooley uses the following mnguage:

“The first error assigned relates to the refusal of the court to allow the defendant to give evidence that the reputation of the complaining witness for morality and virtue in the neighborhood where she resided was bad. Questions were put to several witnesses for the avowed purpose of drawing out such evidence, but in every instance the time inquired about was the time of the trial. It does not, therefore, become necessary for us to consider whether the woman’s reputation at the time or previous to the alleged offense could be proved or not, as it is manifest that her reputation in that regard would be injuriously affected by the offense itself when made known, so that if the bad reputation could be made use of by the defense, the very crime would become the means of protecting the criminal, and the more notorious the seduction the more certain would be the immunity from punishment.”

We are unable to add to the reasoning of this learned jurist anything further which would indicate that testimony as to the general reputation of the prosecutrix for virtue and chastity subsequent to the time of the alleged seduction should not be allowed. The condition of pregnancy existed at the time prosecutrix was living in the neighborhood of the witness Hunter, and she gave birth to a child at that place. It was known that she was an unmarried woman. However virtuous she may have been at the time it is alleged she was seduced by appellant, there can be no question that subsequent developments, if known, would have caused general comment unfavorable to her, and it appears manifestly unjust to have permitted proof of general reputation based upon a condition brought about by what the state was contending to have been appellant’s wrongful act. The same objection would not be' tenable where specific acts of unchastity subsequent to the alleged seduction were sought to be shown. .

Complaint is made in the motion for new trial that the evidence is insufficient to support the conviction, in that the testimony of the prosecutrix was not sufficiently corroborated. We are unable to agree with this contention after having carefully examined the statement of facts. We can see no useful purpose to be accomplished in setting out the evidence in detail. It shows that prosecutrix became acquainted with appellant during the month of February, 1919; prior to that time she had received the company of other young men, and had gone with them to dances and other entertainments. After having met appellant she received the company of no other, but he was a constant visitor at the home of prosecutrix, and accompanied her to dances, parties, and other entertainments. The testimony of prosecu-trix as to an existing engagement between them was supported by the testimony of her sister, which is criticised by appellant to some extent, but was before the jury, and authorized them to accept the same as corroborative of the testimony of the prosecu-trix in that respect. The father testified without objection so far as the record discloses that he knew his daughter was preparing to marry appellant. That a conviction for seduction may be sustained where the testimony of prosecutrix is corroborated by circumstantial evidence tending to show appellant guilty is not an open question in this state. Creighton v. State (Tex. Cr. App.) 61 S. W. 493; Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 221; Thorp v. State, 59 Tex. Cr. R. 517, 129 S. W. 607, 29 L. R. A. (N. S.) 421; Nash v. State, 61 Tex. Cr. R. 259, 134 S. W. 709; Hayes v. State, 72 Tex. Cr. R. 249, 162 S. W. 870. Other cases to the same effect may be found of more recent date than the ones cited.

Having found no errors in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

EATTIMORE, J.

In an exceedingly clear and forceful motion for rehearing, in which many authorities are reviewed, appellant insists that there is not sufficient corroboration of the prosecutrix as to the fact of the’alleged carnal intercourse between them. It seems not to be seriously contested that she is sufficiently corroborated as to the promise of marriage, it appearing in the record that her sister testified to having overheard appellant ask her to marry him, and her assent to said proposition; also that .her father testified that she was preparing to marry appellant. >

We cannot assent to appellant’s proposition of fact, which is that association between prosecutrix and appellant was the only thing shown by the testimony which can be considered as corroborative of her claim of carnal knowledge. Without attempting to enumerate such others, we think that a definitely proven engagement to marry, followed some time thereafter by a claim on the part of the prosecutrix of carnal intercourse between the parties, might’ be considered as a circumstance. We know of no case in which this court has ever held that continued and intimate association between the parties prior to and about the time of the alleged intercourse was not provable on the part of the state; the manifest purpose of such evidence is to corroborate her assertion of intercourse. We think it would be manifestly erroneous for this court to assume to itself the prerogative of laying down a rule as to the quantum of corroborative evidence necessary in any given case. Our duty is to ascertain whether there he any evidence tending to connect the accused with the commission of the offense in a case in which the conviction rests mainly upon the testimony of an accomplice and the question of the sufficiency of the corroborative evidence is raised. It is true this court seems to have always held that the prosecutrix in a seduction ease must be corroborated both as to the promise of marriage and the fact of the carnal knowledge between the parties. As applied to the question of such corroboration of the fact of carnal intercourse, it occurs to us that a fair statement of such corroborative evidence of such fact would be, that there must be evidence in the record independent of that of the prosecutrix tending to show carnal intercourse between the parties. In the instant case prosecutrix gave birth to a child on November 19, 1920. Calculating the ordinary period of gestation would seem to fix the conception of said child at some time in February of said year. Prosecutrix testified that she began going with appellant in February, 1919, and that from said time she went with no one else until after the acts testified to by her of February, 1920. Her aunt testified that no other man went with prosecutrix during so much of said period of time as she was living near them and had opportunity to observe who went with prosecutrix. Her sister bore witness to the fact that no other man went with her after appellant began keeping company with her.

It has often been asserted that the law presumes every woman to be chaste until the contrary is made to appear. There is no suggestion in this record of unehastity on the part of prosecutrix prior to the beginning of her intimacy with appellant. It is true that in his cross-examination of her appellant asked her many questions which, if answered as apparently desired, would have shown her intimacy with others, but she denied such matters in toto, and upon its rebuttal the state produced each one of the parties thus inquired about as being intimate with prosecutrix, and by them entirely negatived the truth of any of the matters affecting her chastity, and about which appellant had inquired on such cross-examination. Assuming chastity on the part of prosecutrix when she began going with appellant, and also bearing in mind that human experience teaches that chaste women do not yield their bodies to chance acquaintances or strangers, but to those only who have won their affection and confidence, we observe that in all cases where an illegitimate child is born, and the mother declines to disclose the secret of its paternity, upon investigation the first inclination of the investigator would he to ascertain with whom the seduced female had been keeping company, and with whom she had been most associated. It will not be gainsaid that, if the evidence disclosed opportunity and association of only one man, further inquiry as to the paternity of the child would be needless. Reasoning further, it would not require lengthy discussion if the investigation disclosed much association and opportunity of one man and an occasional and chance association with another, the fair mind of the investigator would more readily accept belief in the paternity of the constant and intimate friend. In Klepper v. State, 87 Tex. Cr. R. 597, 223 S. W. 468, which is cited by appellant, we used the following language:

■ “Nor can we agree that there is no corroboration of the prosecutrix in this case. By the terms of article 789 of Vernon's O. O. P., the only corroboration that is required is that there be evidence other than that of the pros-ecutrix which tends to connect the defendant with the offense charged. This opens a field as wide as one can imagine, leaving it to a fail-judgment as to whether or not there be evidence in a given case which, independent of that of the prosecutrix, tends to show that the accused is guilty. When an unfortunate situation develops, such as appears in the instant case, with regard to a young woman, it seems not unreasonable that the first and natural inquiry would be as to what man has been most frequently with her, and who would appear from ordinary observation to have enjoyed most of her favors, and, if this inquiry be met by proof that some- one particular individual has been most frequently with her for quite a while and on more than usual terms of intimacy with her, this fact would appear to tend to show him to be the party responsible.”

In Fine v. State, 45 Tex. Cr. R. 290, 77 S. W. 806, which is also cited by appellant, this court, in referring to the question of corroboration as to the matter of intercourse, used the following language:

“In this particular case, according to the prosecutrix’s testimony, she had been engaged to appellant about six months at the time she claims to have been seduced; and we may concede that, as to the appellant having intercourse with prosecutrix, from the fact that he< had continuous opportunities to have had such intercourse, and, moreover, one witness testified that he saw them in the act of intercourse on one occasion, she is abundantly corroborated as to the intercourse.”

In other felonies where the question of corroboration of an accomplice has been before this court, many eases might be cited where the association of the accused with the alleged accomplice, shown by other testimony than that of the accomplice, has been held sufficient to corroborate the accomplice testimony. The only statutory direction is that there be evidence independent of the alleged accomplice which tends to connect the accused with the offense committed, and, as stated above, when an examination of the record satisfies this court that there was evidence introduced before the jury which did tend to connect the accused with the commission of the offense, however slight, this court would decline to reverse. Nourse v. State, 2 Tex. App. 306; Jones v. State, 4 Tex. App. 531; Simms v. State, 8 Tex. App. 243; Moore v. State, 47 Tex. Cr. R. 415, 83 S. W. 1117; Nash v. State, 61 Tex. Cr. R. 264, 134 S. W. 709; Murphy v. State, 65 Tex. Cr. R. 55, 143 S. W. 618.

There was no evidence of any weight or in any wise calling in question that of the state, introduced on behalf of appellant. All of the reflections upon prosecutrix arising by reason of the rigid cross-examination and its extension into matters affecting her chastity were completely overthrown by the state’s rebuttal testimony. Mr. Branch in his valuable Annotated P. C. pp. 1457-1458, cites many authorities in support of. the proposition that, when the jury have solved the questions presented in the testimony under a fair and proper charge of the court, and have found defendant guilty of seduction, and their verdict has been approved by the trial judge, whose duty it is to set it aside if not satisfied therewith, and there is sufficient evidence in the record, if believed, to sustain the verdict, it will not be disturbed on appeal unless under the facts it is clearly erroneous. We are not inclined to agree that the prosecutrix in her claim of carnal knowledge on the part of appellant was wholly without eorroboration, as that term is defined by law,, of her testimony. So believing, appellant’s motion for rehearing will be overruled. 
      
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