
    RHEA v. STATE.
    (No. 8861.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.
    Appeal Reinstated June 10, 1925.
    Rehearing Denied Oct. 14, 1925.)
    On Dismissal.
    1. Bail <&wkey;66 — Recognizance, for appeal must show offense for which punishment imposed.
    Where recognizance failed to show offense for which punishment was imposed, it was not in conformity with Vernon’s Ann. Code Or. Proc. 1916, art. 903, and appeal will be dismissed; court being without jurisdiction in absence of proper recognizance.
    On Motion to Reinstate Appeal.
    2. Criminal law <&wkey;854(6) — Law forbidding separation of jury in felony case less than capital has no application until jury selected and sworn.
    Law forbidding separation of jury in an ordinary felony case less than capital has no application until jury is selected and sworn, and in prosecution for seduction court did not err in permitting jurors, who had been selected but not sworn, to separate and go to homes under proper instructions.
    3. Criminal !aw <&wkey;598 (2) — Continuance for absence of witness held properly refused.
    Continuance for absence of witness' was properly refused, where there was no showing that absent witness had permanently removed from state, no 'predicate was laid for testimony of such absent witness, and no attempt made to take his deposition under statute.
    4. Criminal law <&wkey;595(IO) — Continuance for absence of court stenographer in former trial properly refused.
    In prosecution for seduction, application for continuance because of absence of former court stenographer who had taken testimony at former trial properly refused, where no predicate laid for reproduction of testimony of absent witness given at former trial.
    5. Witnesses <&wkey;287(4) — State properly permitted to' question prosecutrix on matter brought out by accused’s cross-examination.
    Where one accused of seduction had drawn out on examination of prosecutrix that she was suffering from pellagra, state was properly permitted to question her as to who treated her for it and time of treatments,
    6. Witnesses <&wkey;286(4) —State's question to prosecutrix on redirect examination as to her condition at time accused was married to present wife not error.
    In prosecution for seduction, state’s question to prosecuting witness as to her condition at time accused married present wife was not error, it appearing that this was given on redirect examination, after prosecutrix had testified on cross-examination by accused that she did not know of woman accused had married, but that she knew date of marriage, and had not filed complaint against him at that time.
    7. Criminal law &wkey;>l09l(3) — Bill of exceptions insufficient to present .question whether or not question was leading, where surrounding circumstances amt antecedents not set out.
    Bill of exceptions, gomplaining of prosecution's question as to whether or not accused stated to prosecutrix she was to be his wife, as leading, insufficient in absence of setting out of surrounding circumstances and antecedents.
    8. Criminal law <&wkey;404(l) — Bill complaining of fact that prosecutrix brought child into court held to show no error.
    In prosecution for Seduction, bill complaining of fact that prosecutrix brought child into com-t with her did not show error, where child was removed from courtroom upon objection, and no showing of wrongful use made of fact that child came into courtroom with mother.
    9. Criminal law <&wkey;368(3) — Testimony of accused that he hact been informed before marriage that prosecutrix was not pregnant properly excluded as hearsay.
    Attempted testimony of accused that he had been informed before marriage to present wife that prosecutrix was not pregnant properly excluded as hearsay.
    ©=oEor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      10. Criminal law <&wkey;368(3) — Accused’s attempted testimony as to statements of other parties as to intercourse with prosecutrix properly refused as hearsay.
    In prosecution for seduction, accused’s attempted testimony, as to statements of other parties' as to intercourse- with prosecutrix, properly refused as hearsay.
    11. Seduction <&wkey;42 — No error to permit pros-ecutrix tó state she had no intercourse with others prior to that with accused.
    In prosecution for seduction, held it was not error to permit prosecutrix to state that she had had no intercourse with others prior to intercourse with accused.
    12. Criminal law <i&wkey;720-(7) — Argument of prosecuting counsel in prosecution for seduc-tiqn, referring to prosecutrix’s child, held but fair deductions from facts.
    In prosecution for seduction, argument of counsel, referring to defendant’s failure to “lead his baby through life” and to prosecutrix’s “nameless child,” held but fair and reasonable deductions from facts of case.
    13. Criminal law &wkey;>730(8) — Argument of prosecuting attorney that he did not have to impeach defendant’s witnesses not prejudicial error, where court properly instructed jury not to consider same.
    In prosecution for seduction, argument of prosecuting attorney that he did not have to impeach a whoremonger and a pimp, in referring to defendant’s witness, held not prejudicial error, where court properly instructed jury not to consider it.
    On Motion for Rehearing.
    14. Criminal law <&wkey;>805(l) — Requested charge in alternative erroneous and properly refused.
    In prosecution for seduction, a requested charge that, “if you have a reasonable doubt from all the facts and circumstances as to whether or not O. has been corroborated on the issue of promise of marriage, then you will acquit defendant,” was erroneous, and properly refused as being in the alternative.
    1,5. Seduction <&wkey;46 — Testimony of prosecu-trix’s sister as to promise of marriage sufficiently corroborated evidence of prosecutrix as to marriage promise.
    In prosecution for seduction, testimony of sister of prosecutrix that she had accompanied prosecutrix to accused’s place of business and had conversation with him, in which he admitted engagement to prosecutrix, which testimony was disputed by no one but accused, held to sufficiently corroborate testimony of proseerftrix on question of promise of marriage.
    @=»Eor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    A. D. Rhea was convicted of seduction, and he appeals.
    Affirmed.
    See, also, 96 Tex. Cr. R. 11, 255 S. W. 757.
    Thos. R. Bond, of Terrell, and Jas. A. Cooley, G-. O. Crisp, and Ross Huffmaster, all of Kaufman, for appellant.
    H. R. Young, Co. Atty., and Wynne & Wynne, both of Kaufman, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin; for the. State.
   MORROW, P. J.

The offense is seduction; punishment fixed at confinement in the penitentiary for a period of two years.

Attention is directed to the failure of the recognizance to conform with the essentials named in the statute, in that it does not state the offense of-which the appellant was convicted. When one is released on bail, this court is without jurisdiction to pass upon his case in the absence of a recognizance prepared in conformity with the law. See article 903, C. C. P.; Vernon’s Tex. Crim. Stat. p. 873; Watson v. State, 62 Tex. Cr. R. 620, 138 S. W. 611; Willoughby v. State, 87 Tex. Cr. R. 40; 219 S. W. 468; Godby v. State, 88 Tex. Cr. R. 360, 227 S. W. 192; Nugent v. State, 89 Tex. Cr. R. 168, 229 S. W. 855.

The appellant is privileged, within 15 days, to amend his transcript by filing in this court a certified copy of a recognizance complying with the -terms of the law.

The appeal is dismissed.

On Motion to Reinstate Appeal.

LATTIMORE, J.

Conviction in the district court of Kaufman county of seduction; punishment fixed at two years in the penitentiary.

■ This appeal was dismissed at a former day of this term because of a defective recognizance. A sufficient bond having been executed, the appeal will be reinstated and the case considered on its merits. This is the second appeal. See 96 Tex. Cr. R. 11, 255 S. W. 757. The facts are substantially the same, except that the witness Palmer, who testified on -the former trial, did not appear. In our opinion the facts are sufficient to support the verdict.

We know of ho decision in this state holding it erroneous for the cour-t to permit jurors who have been selected, but the panel be not complete before the adjournment of court for the day, and such jurors have not been sworn, to "permit them, under proper instructions from the court, to separate and go to their homes. Our law forbidding separation of the jury in an ordinary felony case less than capital has no application un-til the jury have been selected and sworn. Coffey v. State, 82 Tex. Cr. R. 57, 198 S. W. 326.

Appellant’s bill of exceptions No. 2 is to the refusal of a special charge concerning an argument alleged to have been made by the state’s attorney. The court qualifies the bill -by stating that the -argument referred to was in answer to argument made -by appellant’s attorney.

Appellant made an application for continuance. One of the witnesses named therein appeared and testified at ttie trial.. Witness Palmer was said to be out of the state. There is no showing in the application as to whether the witness had permanently moved from the state or whether he expected to return, and no predicate laid that would justify the reproduction of said witness’ testimony as given on a former trial. Our statutes provide that the defendant may take the deposition of a nonresident witness, and we find nothing in the record showing any attempt to comply with said statute.

Bill of exceptions No. 3 complains of the refusal of the court to permit appellant to renew an application for continuance because of the absence of the former court stenographer who had taken down the testimony at the former trial, appellant stating that he desired the presence of said court stenographer for the purpose of reproducing the testimony of the witness Palmer. No sufficient predicate' having been laid for the reproduction of the testimony of Palmer as formerly given, it would not be error to refuse to grant the continuance because of the absence of the stenographer who took his testimony at said former trial. What we have just said applies to bills of exception Nos. 4 and 5 also. '

Bin of exceptions No. 6 is unintelligible, and presents nothing that the court can consider. Bills Nos. 7 and 8 present objections to cross-examination by state’s counsel of two witnesses for the defense. In one instance the 'witness answered the question in the negative, and in the other no answer appears. As answered, and also as qualified by the trial court, neither present any error.

We fail to observe how it could reflect upon the prosecutrix to ask her whether there were any houses close to where the car was stopped, on an occasion when she, in company with another young man, together with one Jim Palmer and a young woman, were out in a car, the proof showing that Palmer and his companion got out of the car, and the prosecutrix and her companion remained in the ear, and there being no suggestion of improper conduct on the part of the prosecu-trix and the young man with her.

Appellant having drawn out of prosecutrix on her original cross-examination that she had suffered from pellagra, we see no objection to permitting the state to question her as to who treated her for it and when she was treated. The matter is complained of in bill of exceptions No. 10.

Bill of exceptions No. 11, as qualified by the court, presents no error. It presents appellant’s objection to the state’s question to prosecutrix as to what condition she was in at the time appellant married his present wife. From the explanation made by the court it appears that this was given in redirect, and that upon cross-examination prosecutrix had testified, in response to a question by the defense, that she did not. know the woman who appellánt married, but did know that he married in September, and up to that time she had not filed any complaint against him, but was trying to.

For a bill of exceptions, to complain that the county attorney asked prosecutrix, “■What did he say about whether or not you were going to be his wife?” and that appellant objected to said question because it was leading, is wholly insufficient, in the .absence of a setting out of the surroundings and antecedents 'of such question. Bill No. 13 complains of the fact that when prosecutrix came into the courtroom she brought with her the child claimed by her to be the result of the seduction by appellant. The bill shows no error. Upon objection by defense counsel the child was removed from the courtroom, and there is no showing that any illegal comparison was instituted between it and appellant, or any wrongful use made of the fact that the child came into the courtroom with its mother.

The matter set out in bill of exceptions No. 14. shows that appellant was not allowed to say that he had been informed before he married his present wife that prosecutrix was not pregnant. The matter is purely hearsay. Bill No. 15 shows an objection was made after the question was answered. As we view it, the question and answer both, were proper. Bill No. 16 shows-that appellant attempted to state that other parties had told him that they had had intercourse with prosecutrix prior to the time he had same. The testimony was hearsay, and properly rejected. A bill complaining of -the fact that prosecutrix was permitted to state that prior to the time appellant had intercourse with her no other man had ever sustained that relation presents no error,

There are several bills complaining of argument such as 'that, “The defendant, not leading his baby by the hand through life, is not fit to enjoy the freedom of citizenship,” and also of the statement by the county attorney that “when prosecutrix walks out of this courtroom she ,goes out with a nameless baby by her side,” and of the statement by said prosecutor that, “She must go through life sneered at and jeered at, with no man to ever love and care for her,, no man to lead her down the church aisle in marriage, but she must bear her burden with, her nameless child by her side,” which seem but reasonable and fair deductions from the facts in the case,, and present no meritorious objection.

The’ complaint at the argument of the private prosecuting attorney for his statement about witness Arthur Alexander may have some basis, but we would not reverse a case when the lowest penalty was given for such argument unless the evidence was insufficient, or the attack upon the witness of a more vicious character. Alexander had shown by his testimony .that he was an occupant of a rooming house in Dallas at which he claimed to have seen appellant with prose-cutrix. Erom the bill of exceptions it is evident that the defense vigorously assailed the prosecution for its failure to impeach or reflect upon said witness Alexander. What language was used by 'the appellant’s attorney does not appear, but replying to this argument the state’s counsel said that they did not have to impeach a whoremonger and a pimp. The ’attention of the court being called to the matter, he promptly instructed the Jury not to consider the statement or the language used. We see no reason to believe that the jury did not follow the instruction of the court, or that the matter was of such serious error as to call for a reversal. Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists, on the authority of Slaughter v. State, 86 Tex. Cr. R. 527, 218 S. W. 767, and Brewer v. State, 93 Tex. Cr. R. 213, 246 S. W. 663, that our opinion affirming this case was wrong. Said authorities hold that when only an ordinary charge on the corroboration of an accomplice is given in a seduction case, and a proper exception is taken thereto, or a proper special charge is asked, in which the court is adequately called upon to tell the jury that if the proseeuirix lacks corroboration upon either the promise of marriage or the fact of intercourse, the accused should be acquitted, and the charge be not changed to meet the exception or the special charge be not given, the matter would constitute reversible error.

Appellant contends in his motion that the court’s charge'presented only the general law of the corroboration of an accomplice, and that, while there' was no exception to the charge for its failure to require specific corroboration on the promise of marriage yet there was a special charge asked and refused, in which the jury were told "that the accused should be acquitted if the prosecutrix was not sufficiently corroborated on the promise of marriage. We have examined 'the record very carefully. Appellant admitted the fact of intercourse with prosecutrix. Special charge No. 7, which is the one whose i-efueal is complained of by appellant on this point, is as follows:

“Although you may find from the evidence in this ease that defendant did have intercourse with Edna Cobb, but if you have a reasonable doubt from all the facts and circumstances as to whether or not Edna Oobb has been corroborated on the issue of promise of marriage, then you will acquit defendant.”

It will be noted that this charge seeks to have the jury told that if they have a reasonable doubt from all the facts and circumstances as to whether or not Edna Cobb has been corroborated, etc. Clearly, this is erro-. neous, and the learned trial judge did not err in refusing it. Appellant should not be acquitted if the jury had a reasonable doubt as to whether prosecutrix had been corroborated, and at the same time as to whether she had not been corroborated. A charge in the alternative such as this is was properly refused. We do not understand appellant to lay any stress upon the refusal of his special charge No. 8, which goes no further than to say that:

“The burden of proof is upon the state to show beyond a reasonable doubt the corroboration of the testimony of Edna Cobb given upon the trial of this case, as that term is defined in the main charge, and- if the state had not shown such corroboration then you will acquit the defendant.”

This presents no additional proposition of law to that given in the main charge.

In addition to what we have above stated, we might further observe that the record shows, on the question of corroboration of prosecutrix bn the promise of marriage, that her sister testified that after the pregnancy of prosecutrix wa® discovered she accompanied prosecutrix to the barber shop where appellant worked, and had a conversation with him regarding the matter, in which appellant, in so many words, admitted to witness that he was engaged to prosecutrix before he ever touched her. This testimony was disputed by no one save appellant, and would seem to furnish complete and adequate corroboration of the testimony of prosecutrix on the promise of marriage.

The motion for rehearing will be overruled.  