
    COOPER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    1. Criminal Law (§ 1159) — Appeal—Review —Questions op Pact.
    Where the evidence for the state, if true, makes a case, the verdict will not be disturbed because of a strong conflict in the evidence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.]
    2. Criminal Law (§ 659) — New Trial-Misconduct op Witness.
    On a trial for seduction, it was highly improper for the prosecuting witness to kneel in the presence of the jury and offer the prayer: “Oh, dear Jesus, X do pray Thee to be with me during this my hour of trial. Oh, dear Jesus, give me just the words Thou would have me to say” — and, after being cautioned, to again utter the prayer, “Dearest, Jesus, I pray Thee to be with me,” though this in itself might not justify a new trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1460; Dec. Dig. § 659.]
    3.Criminal Law (§ 913) — New Trial — Absence op Witness.
    Where accused’s counsel, on the morning that a seduction case was set for trial, learned of two persons who claimed to have had sexual-intercourse with the prosecuting witness prior to the time accused became acquainted with her, and endeavored to locate them without success, but did not ask for a continuance because the trial judge had stated that if such motion was made he would change the venue to another county, though because of the failure to make such motion the absence of such-witnesses as a legal ground for a new trial was waived, their absence presented strong, equitable grounds, justifying a new trial, if the ends of justice would be best subserved,' especially where the evidence was in irreconcilable conflict and other matters prejudicial to accused occurred, though not sufficient in themselves to require a new trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2137-2145; Dec. Dig. § 913.]
    4.Criminal Law (§ 723) — Tbiai>-Miscon-duot op Prosecuting Attorney.
    On a trial for seduction, it was improper for the prosecuting attorney to seek to arouse the passions and prejudice of the jury by reference to matters outside the record, and to make an impassioned reference to the jurors’ “loved ones at home” and their “little flaxen haired girl, or the little girl with the black hair and the blue eyes,” for the purpose of arousing the animosity of the jury against the character of offense charged.
    [Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 1663, 1674, 1676; Dec. Dig. § 723.]
    Appeal from District Court, Fisher County; Jno. B. Thomas, Judge.
    Terry Cooper was convicted of seduction, and he appeals.
    Reversed and remanded.
    C. P. Woodruff, of Sweetwater, for appellant. C. E. Lane, Asst. Atty. Gen., and R. C. Chambers, of Anson, 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 prosecuted and convicted of seduction, and his punishment assessed at two years’ confinement in the penitentiary.

The prosecutrix by her testimony makes a plain case of seduction, and corroborated, as she is, by other testimony and the circumstances in the ease, especially that of her sister, Mrs. Tom Smith, we would not feel authorized to disturb the judgment on the evidence, but would and do hold that it is sufficient to sustain the verdict, and this contention is overruled. It is true that appellant testifies positively that he was never engaged to be married to the young lady; that he never at any time had sexual intercourse with her; and he also swears that he, while going with her, informed her that he was engaged to and was going to marry another lady, whom he did marry, in which latter statement he is corroborated by Ms sister, Mrs. Holland, and the issues of fact are strongly in conflict. But questions of fact are for the jury to determine, and, where the testimony offered by the state, if true, makes a case, we should and will not disturb the verdict because of tMs conflict.

By a proper bill it is shown that, when the young lady, Miss Townsend, was called to testify, she knelt in the presence of the jury and offered np the following prayer: “Oh, dear Jesus, I do pray Thee to be with me during this my hour of trial. Oh, dear Jesus, give me just the words Thou would have me to say.” The court did all in his power to remove the effect of this scene, recognizing, as we do, that it was highly improper. But, after being cautioned, the young lady took her seat on the witness stand, and again uttered this prayer: “Dearest Jesus, I pray Thee to be with me.” The court, as well as counsel, again remonstrated, and the court again instructed the jury not to consider this incident in their deliberations.

There, is another matter in the record that should perhaps be considered. It presents no legal ground for the granting of a new trial, perhaps, but the plea has in it some equities. On the morning that this case was set for trial, appellant’s counsel was informed by J. E. Jay that he knew the prosecuting witness and had known her for some three or four years. At the time he formed her acquaintance he was attending college in Abilene. At the same time Lloyd Airhart and Haskell January were also attending this college, and Miss Townsend was attending the high school in Abilene. He swears on the hearing had on the motion for a new trial that both January and Air-hart had told him that they had had sexual intercourse with the prosecuting witness in this case. This was prior to the time that appellant became acquainted with her. Jay also testifies that he never did tell appellant about these facts, but that, on the morning of the day the case was called for trial, he did tell the attorneys for appellant The attorneys at once had process issued for January and Airhart. This was only about five hours before the case was called for trial, and they made no motion to postpone or continue the case, and thus what would otherwise be a legal ground for a new trial was waived. They swear on the motion for a new trial that the reason they did not ask for a postponement or continuance was that, on the day the case was called and set for trial at a future day, the trial judge then informed them they must announce ready for trial on that day or he would on his own motion change the venue of the case and transfer it to Scurry county; that for this reason they announced ready, and hoped to get the witnesses by wire. And the fact ⅛ proven by the record that they did have the district clerk of the county wire and telephone and try to locate these witnesses, and did locate Mr. January, but, the case being called for trial, the district clerk withdrew the process for these witnesses without notifying appellant’s counsel that he had done so until after the trial. As before stated, this does not make a legal showing for a new trial, for if appellant knew, as the record shows he did know, before • announcing for trial, what he expected to prove by these witnesses, when the case was called for trial he should have made an application to postpone or continue the case, and if, because he did so apply, the court arbitrarily transferred the case to another county, properly-reserved his bill to such action and brought that question to us for review. But the fact that his attorneys state they were afraid to make this application for that reason, and they so testify on the motion for new trial, there being no denial that the court had told them he would change the venue, if they made application to continue the case, and the record disclosing the efforts made to get the witnesses during the trial, and the further fact that Mr. Jay, on the motion for a new trial, swears the facts stated are true, present strong equitable grounds on which the trial court is always authorized to act if he deems the ends of justice will be best subserved, for the trial court, this court, nor the state does not desire a man who has committed no offense incarcerated in the penitentiary.

Again it is shown in a bill that the prosecuting officer in his closing speech was impassioned in his address, inclined to abuse of appellant, and went out of the record. Those portions of the speech copied in the bill are too lengthy to be herein copied, going so far at one time that the trial court felt called upon, on his own motion, to stop him before an exception could be urged by appellant’s counsel. Attorneys should never seek a conviction by such methods. Be as ardent, be as sincere, be as eloquent as you may, but always stay within the record, and the public and this court will commend you. But seek not to arouse the passions and prejudice of the jury by reference to matters extrinsic the record, for in a case of this kind, where the testimony is so nearly evenly balanced that any honest jury would be authorized to either convict or acquit and not be subject to any criticism for so doing, these extrinsic matters should not be thrown into the scale, and thus obtain a verdict that might not have been obtained if the record had been adhered to.

The young lady and the young man, as shown by the record in this case, both stood well in the community in which they lived; their reputation for truth and veracity is shown to be excellent; and yet there is an irreconcilable conflict in their testimony in this case. They are both corroborated in their contentions by the facts and circumstances in evidence, and while we would not invade the province of the jury and disturb this verdict because of this conflict, for the jury is alone the judge of the credibility of the witnesses, yet in a case like this, when the testimony is so evenly balanced, and it is solely the credit of the witnesses to be passed on, and they both show such enviable reputations as they each show in this case, and when the above-repited extrinsic matters may have affected the judgment of the jury, and the impassioned appeal made to them as to what they would do under such circumstances, saying that when they went to meet their loved ones at home, and “your little flaxen haired girl, or the little girl with the black hair and the blue eyes comes to you,” etc., are made for the purpose of arousing the animosity of the jury against the character of offense here charged, we are of the opinion that the strong equitable showing made on the application for a new trial should have weight. If the facts there stated can be shown to be true, appellant is guilty of no offense. And as to whether it is true or not is not for us or the trial court to say, but a question to be determined by a jury.

We have read this record more than once, and under this record feel that this case should be reversed and remanded for a new trial, when all the evidence can be placed before the jury, when the prosecuting witness can be cautioned that she must not utter prayers of the kind and character here shown in the presence and hearing of the jury before she begins to testify, and when the prosecuting counsel, with this admonition may keep within the record in his argument. While no one of those facts may be sufficient to authorize a reversal, yet, when they are all taken together, no one can tell its effect, or what influence it may have had.

The judgment is reversed, and the cause remanded.  