
    BRONIKOWSKI v. STATE.
    (No. 8834.)
    (Court of Criminal Appeals of Texas.
    April 8, 1925.
    Rehearing Denied May 20, 1925.)
    1. Seduction <&wkey;>46 — Testimony of prosecutrix as to intercourse being on defendant’s promise to marry her sufficiently corroborated.
    In prosecution for seduction, evidence held sufficiently to corroborate testimony of prose-cutrix as to intercourse with defendant being on his promise to marry her.
    2. Seduction <&wkey;4'3 — Conversation with prose-cutrix in prosecution for seduction, held admissible.
    In prosecution for seduction, conversation had by defendant with prosecutrix when he visited her shortly after birth of her baby was admissible on proposition of his wishing and intending to marry her and having secured carnal knowledge of her under promise to marry her.
    3. Criminal law <&wkey;720(7) — Reference of state’s attorney in argument to prosecutrix’s baby in prosecution for seduction held not reversible ' error.
    In prosecution for seduction in which prosecutrix sat in courtroom in view of jury with her baby, pointing out of the baby by state’s attorney in his argument to jury held not reversible error, where prosecutrix had sworn of her connection with defendant and that a child was born, and it did not appear that state’s attorney said anything in reference to child which could be regarded as out of the record.
    4. Criminal law <&wkey;!037(2) — Remarks of state’s attorney held not erroneous in absence of request for jury to disregard.
    In prosecution for seduction, remarks of state’s attorney, that if boys were permitted to do as defendant had done and be acquitted homes and daughters of others would be endangered, held not reversible error, where no request was made to have jury instructed not to consider such remarks.
    On Motion for Rehearing.
    5. Criminal law <&wkey;595(IO) — Continuance for absent witness held properly denied.
    Continuance for absent witness in prosecution for seduction held properly denied, where if present she would have testified that defendant had never gone with or visited prose-cutrix prior to time defendant admitted having intercourse with her; such statement being but conclusion and of but little weight.
    Appeal from District Court, Washington County; R. J.'Alexander, Judge.
    Alex Bronikowski was convicted of seduction, and he appeals.
    Affirmed.
    B. F. Teague, of Brenham, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s. Atty., both of Austin, for the State.
   DATTIMORE, J.

Appellant was convict-, cd in the district court of Washington coun-. ty of seduction, and his punishment fixed at two years in the penitentiary.

There is no dispute in the record of the fact that the prosecutrix was under 25 years of age, nor of the fact that appellant. repeatedly had carnal knowledge of her, and the only question on 'the facts was as to whether he obtained such carnal knowledge by a promise to marry the girl. She testified positively that he did, averring that he met her and made love to her, and that she loved him and relied Upon his promise to marry her in surrendering her person to him. The mother of prosecutrix testified that the third day after the birth of the baby of prosecutrix appellant came to see her, and that witness was in the room where appellant and prosecutrix were talking; that they talked about marrying, and appellant said he wanted prosecutrix to have the baby baptized and named in the surname of prosecutrix, but after, they were married he would have the baby’s name changed to his name. She testified also that appellant had been going to see prosecutrix a long while before the date of the alleged intercourse, and to his taking her to parties, dances, etc. Another witness testified that about the time appellant began going with prosecutrix she had a conversation with him in which she asked him why he brought prosecutrix to the dance where they were, inasmuch as he had been going with another girl, and his reply was that he “got it from Annie, and that was the reason he went after Annie.” The witness said to him, “If you are doing like that, you have to marry her,” and- that appellant replied he would marry her .but he was afraid of Edna. This was in February, 1923; the alleged seduction having taken place in November, 1922. Another witness testified that before Christmas in 1922 he was talking with appellant about prosecutrix, and that appellant said he was the “first one to that girl.” Witness said appellant meant by this that he was the first one who did anything to her, and also said that appellant told him his first time with her was about three and one-half months before the conversation. It was shown that the reputation of prosecutrix for chastity was good pri- or to the trouble with appellant. Appellant took the stand in his own behalf and testified that he first had intercourse with prosecutrix on an. occasion when she and her brother came down to the home of appellant and stayed until about 9:30 o’clock at night, and that he and his sister walked part of the way home with prosecutrix and her brother. He insisted that on this night prosecutrix begged him to have intercourse with her and he finally consented, and that afterward on several occasions he repeated the performance. On cross-examination appellant said that he went to the home of prose-cutrix after the baby was born to see if prosecutrix wanted to marry him, and he testified that if she had said anything on that occasion he would have married her, and that he did not go back and’ marry her when she got well because she did not say anything. Asked as to his reason for wanting to marry her, he said it was because he did not want to have' any trouble. Further in his cross-examination he said that he told prosecutrix and her mother that if she wanted to he was ready to marry her, and that the girl did not say anything.

In our opinion these facts sufficiently corroborate the testimony of prosecutrix as to the fact of her intercourse with appellant upon his promise to marry her.

.A bill of exceptions was reserved to the refusal of a continuance sought on account of the absence of the sister of appellant. We have examined the testimony set out in the application as expected from said sister, and find in it nothing of any materiality in view of appellant’s admission on the witness stand that he did have intercourse with prosecu-trix on the night referred to in the expected testimony of the absent witness. Bill of exceptions No. 2 complains of the admission of the conversation had by appellant with prosecutrix when he visited her shortly after the birth of her baby. We think the entire conversation and all that was said by appellant on said occasion admissible as shedding light on the proposition of his wishing to marry her and intending to marry her and having secured carnal knowledge of her under promise to marry her.

Bill of exceptions No. 4 complains of "the fact that during the argument of the case prosecutrix sat in the courtroom in view of the Jury with her baby in her lap, and that it was referred to and pointed out by the state’s attorney in his argument to the jury. It is insisted that this was indirectly putting the baby in evidence. We do not agree to the proposition. The girl had sworn that of her connection with appellant a child was born. This court has held that-the mere holding of the child, alleged to be the result of the intercourse with the defendant, in the lap of prosecutrix in the presence of the jury while she was testifying was not reversible error. It is not shown in the bill of exceptions that state’s counsel said anything in reference to the child or its resemblance or anything of that kind that could be regarded as out of the record.

Complaint is made by bill of exceptions No. 5 of remarks made in argument for the state, to the effect that if boys were permitted to do as appellant has done and be acquitted the homes and daughters of others would be endangered and their daughters would not be safé. No request was made either in writing or orally that the jury do not consider such remarks, and ordinarily, unless the remarks are so evidently calculated to prejudice the case as to be without question along this line, we do not hold them reversible in the absence of requested instruction to the jury not to consider same.

The only remaining bill of exceptions was taken to the action of the court in overruling the motion for new trial; said motion not presenting any extraneous matters but merely made in the usual form cpmplaining of things that transpired during the trial.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

In a forcible motion for rehearing appellant insists that we erred in overruling the application for continuance because of the absence of the sister of appellant. It is urged that her testimony, as stated in the application, went beyond the matters discussed by us in our opinion. -Appellant claims that had she been present and testified, as stated in the application, “that the defendant had never gone with or visite the prosecutrix prior to that time”—the time referred to being the night on which appellant admitted having intercourse with prose-cutrix—this would have been very material to his defense. We regret that' we cannot agree with counsel in regard to this matter. Such a statement in the application for continuance appears to us to be but a conclusion and an opinion which the witness would not be warranted in expressing on the witness stand, and which, if allowed, would have but little weight. - Slight reflection would convince one that for appellant’s sister to undertake to say that he had never gone with or visited the prosecutrix prior to a certain date would manifestly be beyond her power to truthfully state. He was a man and she a woman. He went his way and she hers, and for her to undertake to say that he never went to a certain place or with á certain person would ordinarily be deemed beyond her ability and be but an opinion, the weight of which would depend upon such facts as she might' state. We do not believe the ease should have been continued in order to allow said witness to state such opinion.

Appellant again urges that this is not a case of seduction, because there appears in the testimony of prosecutrix some statements which to the mind of appellant support the conclusion that the carnal intercourse was had under circumstances which partook of the nature of barter and exchange, and not of the yielding by a chaste woman of her person to her lover relying upon his promise to marry. It must be borne in mind that prosecutrix was a Polish girl, testifying . through an interpreter, and that her expressions of lier motives, feelings, and purposes could not be put with, that clarity and distinctness which otherwise might have appeared. The matter referred to appears in questions propounded to her as to what she said upon the examining trial and which she admitted she then stated. The naked statement that she allowed appellant to have intercourse with her upon his promise to marry, if disconnected from other parts of the testimony and other expressions used . by the witness throughout, might furnish some basis for appellant’s contention; but looking to this unfortunate girl’s testimony as a whole and at practically all of her other statements made while on the witness stand, in this ease, it appears manifest to our minds that the evidence does not so make out a case of barter and sale as to justify the conclusion that that was the dependence of prosecutrix in allowing the carnal act.

Being unable to agree with the contentions made by appellant, the motion for rehearing will be overruled. 
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