
    GAINER v. STATE.
    (No. 6326.)
    (Court of Criminal Appeals of Texas.
    June 15, 1921.)
    1. Seduction <§=>46 — Prosecutrix must be corroborated both as to act of intercourse and promise of marriage.
    In a prosecution for seduction, the law requires corroboration of prosecutrix both as to the act of intercourse and the promise of marriage.
    2. Seduction <§=>32 — If prosecutrix unchaste, defendant not guilty.
    If prosecutrix was unchaste, defendant was not guilty of seduction.
    3. Criminal law <§=>945(2) — New trial should have been granted for newly discovered evidence of prosecutrix’s unchastity.
    In a prosecution for seduction, held, that new trial should have been granted defendant for newly discovered evidence that prosecutrix was unchaste at the time of her relations with defendant, defendant and his counsel having used due diligence to procure the testimony of the witness, who had testified on trial, but suppressed the fact that he had had relations with prosecutrix.
    Appeal from District Court, Matagorda County; M. S. Munson, Judge.
    Harry Gainer was convicted of seduction, and lie appeals.
    Judgment reversed, and cause remanded.
    W. M. Holland, of Houston, Matt Cramer, of Jewett, and John F. Perry, of Bay City, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the offense of seduction. Punishment fixed at confinement in the penitentiary for a period of six years.

The prosecutrix testified to her seduction by the appellant. The law, it is true, requires corroboration to both the act of intercourse and the promise of marriage, but, without detailing them, we express the view that the corroborating evidence in the instant case was not insufficient as a matter of law. Slaughter v. State, 86 Tex. Cr. R. 527, 218 S. W. 767; Nash v. State, 61 Tex. Cr. R. 287, 134 S. W. 709; Wright v. State, 31 Tex. Cr. R. 359, 20 S. W. 756, 37 Am. St. Rep. 822. It is said in one of the cases cited:

“The nature of the offense is such that it is necessary to accept slight circumstances for the purpose of corroboration. * * * The jury *' * * must decide what corroborating evidence is true, and its efficacy in meeting the measure of the law.”

On the promise of marriage there was evidence of association, and the declaration by appellant, in the presence of the mother of prosecutrix, that “we are to be married on the 17th of September.” This was related by the mother, and in connection therewith surrounding circumstances from which the jury was authorized to draw the inference that the statement referred to the prosecutrix. There were also circumstances disclosed by the testimony of other witnesses sufficient to support the finding of the jury that the pros-ecutrix was corroborated upon the act of intercourse.

Appellant sought a new trial on the ground of newly discovered evidence. This evidence consisted in testimony to the effect that the prosecutrix, before her relations with the appellant were established and about the same tjme, had submitted her person to other men. According to the motion for new trial, which was sworn to, and.the affidavit of one Taylor, which was attached thereto, there would have been available to the appellant upon another trial direct and positive evidence to this important fact. According to the testimony of the prosecutrix, a woman approximately 24 years of age, she submitted to the appellant’s embraces within 16 days after she met him for the first time. The testimony of the prosecutrix concerning the persuasive acts usually occurring antecedent to such an affair is meager, and that corroborating her more so.

Appellant testified, disclaiming entirely the relations imputed to him by the prosecu-trix. He used witnesses testifying to circumstances tending to support his theory, but was able to present no affirmative testimony of her want of chastity. If she was unchaste, he was not guilty. Mrous v. State, 31 Tex. Cr. R. 599, 21 S. W. 764, 37 Am. St. Rep. 834; Vantresse v. State, 59 Tex. Cr. R. 281, 128 S. W. 383; Simmons v. State, 54 Tex. Cr. R. 625, 114 S. W. 841; Branch’s Ann. Penal Code, § 2693.

Taylor was summoned as a witness and appeared at the trial, but was not used. It affirmatively appears from the motion for new trial and from the affidavit of Taylor attached thereto that at the trial he denied to both the appellant and his counsel that he knew or would testify to knowledge of intercourse of the prosecutrix with other men. It appears from his affidavit that he suppressed this fact because he was one of those who had had intercourse with her and 'that he feared that if he disclosed the fact it would result in his prosecution. He further declared that she did not submit to him upon any promise of marriage, but that his relations with her were with her consent without such promise. The state made an issue as to the truth of the testimony, but with reference to the diligence to procure it did not controvert the facts set out. The contention is made that the presence of the witness at the trial and the failure to use him is conclusive against the appellant upon the question of diligence. We think this view is not sound.

The record suggests nothing additional that might have been done by appellant or his counsel to procure the testimony. In no particular discerned by us did their efforts fall short of compliance with the rule controlling diligence as applied to newly discovered evidence. Fisher v. State, 30 Tex. App. 507, 18 S. W. 90; Strickland v. State, 13 Tex. App. 371; Johnson v. State, 51 Tex. Cr. R. 605, 103 S. W. 893; Black v. State, 71 Tex. Cr. R. 625, 160 S. W. 687; Brown v. State, 42 Tex. Cr. R. 177, 58 S. W. 131; Henson v. State, 74 Tex. Cr. R. 277, 168 S. W. 91.

In controverting the motion for new trial, state’s counsel presented affidavits contradicting the truth of the newly discovered evidence, but not calling in question appellant’s ability on another trial to produce it. The conflict between the state’s testimony, as disclosed by the affidavits, and the newly discovered evidence, would form an issue which it was the right of appellant to have the jury decide.

The failure to procure the testimony not being chargeable to the fault of appellant or his counsel, it not being cumulative or impeaching evidence, but material upon' an issue going to the merits of the case and such as, if believed, would establish a defense, we think the trial court was not warranted in overruling appellants motion for new trial.

The judgment is reversed, and the cause remanded. 
      <§=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     