
    KENNEDY v. STATE.
    (No. 9527.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1925.
    On Motion for Rehearing March 10, 1926.
    On Second Motion for Rehearing May 5, 1926.)
    1. Criminal law <&wkey;l09l (I I) — Bills of exceptions .entirely in question and answer form cannot be considered (Vernon’s Ann. Code Cr. Proc. 1916, art. 846.)
    Bills of exceptions entirely in question and answer form cannot be considered, in view of Vernon’s Ann. Code Cr. Proc. 1916, art. 846.
    2. Criminal law &wkey;l 120(8) — Where bills of exceptions do not set out Pacts showing inadmissibility of testimony complained of, ruling of trial court is presumed correct.
    Bills of exceptions failing to show what objections were urged to admission of evidence complained of, and not setting out facts to show inadmissibility of evidence, are insufficient, and ruling of trial court thereon is presumed correct.
    3. Criminal law <&wkey;>939(I)— Refusal to grant new trial in seduction prosecution for aL leged newly discovered evidence was proper, where testimony relied- on had been introduced in habeas corpus proceedings in accused’s presence.
    Refusal' to grant new trial in seduction prosecution for alleged newly discovered evidence, consisting of testimony introduced in habeas corpus proceedings in accused’s presence, was proper, as such testimony was not newly discovered evidence.
    4. Criminal law <&wkey;!038(l), 1056(1) — Where no exceptions or objections to court’s charge were urged on trial, complaint thereto in accused’s brief cannot be considered.
    Where no exceptions or objections were urged to court’s charge to the jury, complaint thereto, made for first time in accused’s appeal brief, cannot be considered.
    On Motion for Rehearing.
    5. Seduction <&wkey;46 — Evidence held insufficient to corroborate testimony of prosecutrix that intercourse was obtained by a promise of marriage.
    Evidence that accused asked prosecutrix’s mother to tell daughter he was leaving and would do all he could for her, and that accused sought to avoid seduction prosecution by payment of money, held insufficient to corroborate testimony of prosecutrix that intercourse was obtained by a promise of marriage.
    
      <i&wkey;For other cases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes
    
      On Second Motion for Rehearing.
    6. Crimina! law <&wkey;406(i)—Statement or conduct of person charged with or suspected of crime indicating a consciousness of guilt is admissible on his trial.
    Any statement or conduct of a person indicating a consciousness of guilt, where he is charged with or suspected of crime, is admissible as a circumstance against him on the trial. •
    7. Seduction &wkey;>46—There must be corroboration of prosecutrix, both as to fact of intercourse and that same was obtained by promise of marriage.
    In prosecution for seduction, there must be corroboration of prosecutrix, both as to the fact of carnal knowledge, and also of the fact that same was obtained by a promise to marry, to sustain a conviction.
    @=sPor other oases see samp topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Bexar County; W. 'W. McCrory, Judge.
    Willard Kennedy was convicted of seduction, and lie appeals.
    Judgment reversed, and cause remanded.
    Hull & Oliver and Simmons & Mahaffey, all of San Antonio, for appellant.
    C. M. Chambers, Dist. Atty., and Carl Wright Johnson, Asst. Dist. Atty., both of San Antonio, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., Qf Tyler, for the State.
   BAKER, J.

The appellant was convicted in the Ninety-Fourth district court of Bexar county of the offense of seduction, and his punishment assessed at 2% years in the penitentiary.

The theory of the state is that the appellant had intercourse with the prosecutrix, Mary Kocsharek, under promise of marriage. The appellant admitted the intercourse, but denies the promise of marriage.

We find in the record seven bills of exceptions. Bills of exception 1, 2, and 6 are entirely in question and answer form, which under the statutes and holdings of this court we are unable to consider. Vernon’s Ann. Code Cr. Proc. 1916, art. 846.

Bills 3 and 4 fail to show what objections were urged to the admission of the testimony complained of, and are insufficient in not setting out sufficient facts to show this court that said evidence was not admissible; otherwise the ruling of the trial court thereon is presumed correct.

Bill 5 complains of the action of the court in refusing to instruct a verdict of not guilty. There is no merit in this contention.

Bill of exception 7 complains of the action of the court in refusing to grant a new trial for alleged newly discovered evidence. This bill shows that the alleged newly discovered testimony is the testimony of Hon. W. S. Anderson, the judge who heard the habeas corpus proceedings of this case and testimony of the prosecutrix thereon. This bill clearly shows that the testimony set out in the motion for new trial was introduced in said habeas corpus proceedings in the presence of the defendant, and could not possibly come under the head of newly -discovered evidence, and said bill does not show any error in the ruling of the trial court in this instance.

Appellant complains for the first time in his brief of the court’s charge to the jury, but the record discloses that there were no exceptions or objections urged thereto at the proper time, and for that reason we are unable to consider same. ,

The appellant contends that the evidence is insufficient to support the conviction in this case. We think the testimony of the state, which was accepted by the jury, makes out a ease against the appellant, and that the evidence of the prosecutrix was sufficiently corroborated under the law.

We find no error in the record, and the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

According to the testimony of Mary Koscharek, the px'osecutrix, she lacked some 2 months of being 18 years of age on May 15, 1923, the date on which the first act of intercourse took place. She said that she and the appellant went in a vehicle to a point 4 or 5 miles from San Antonio ; that they got out of the car, and appellant made love to her, and “she naturally loved him.” When he asked for carnal favors, she told him that they were not married. 1-Ie said: “We are going to get married, anyhow.” He further said: “Well, I promise to marry you anyhow; we are going to get married anyhow. * * * If you will let me do this, I will marry you. I am going to marry you .anyhow.” She said that appellant had promised to marry her previous to that time. The prosecutrix gave birth to a baby on February 19, 1924. Their relations continued until November, 1923. When she reported her condition to the appellant he said: “Well, just keep quiet; I will fix it up; I will do the right thing by you; I will marry you.”

Upon the examining trial, the prosecutrix testified that upon the first act of intercourse appellant said that if she ever got in a family way he would marry her. He further said that whenever she became pregnant he was going to marry lier anyhow. They bad been beeping company for about 2 months before the first act of intercourse, going to dances and other places of amusement.

The mother of the prosecutrix testified that she had a conversation with the appellant over the telephone in November, 1923; that the person calling gave his name as Willard Kennedy; that to the best of her judgment she recognized his voice. He. ashed the whereabouts of Mary. The witness replied: “She is at work yet. * * * What do you want?” Appellant replied: “I am leaving. * * * Tell her good-bye, and tell her that I will do all I can for her.” The witness said that the prosecutrix was keeping company with no other men at that time. The witness further said that the appellant and Bichard Kennedy, some weeks before the present trial, came to her house and said that they came to settle the business. The purport of this testimony is to the effect that the appellant and his uncle, after the prosecution had been instituted, wished to avoid it by the payment of money. Appellant admitted his relations with the prosecutrix, but denied any promise of marriage. To sustain a conviction, corroboration upon that phase of the statute is essential. See Slaughter v. State, 218 S. W. 767, 86 Tex. Cr. R. 527. We confess our inability to find testimony meeting the requirement of the law forbidding conviction upon the uneorroborative testimony of the prosecutrix.

The fact that the appellant telephoned to the mother of the prosecutrix and used the language therein imputed to him by her, and the fact that, after the prosecution was begun, there was an effort to have it concluded by the payment of money, seem to be the only testimony relied upon or available to the ■state as corroborative of the testimony of the prosecutrix to the effect that there was a promise of marriage. Neither of these mentioned any promise of marriage; nor do we conceive them to be cogent circumstances supporting that theory. The appellant was a soldier, and was transferred from one government post to another. That upon leaving he may have called up the girl over the telephone, and, failing to get her, told her ■mother to tell her good-bye and that he would <do anything that he could for ber, does not' •occur to us as either an express or implied admission of the promise of marriage. If is ■entirely consistent with the appellant’s theory of the case as revealed by his testimony ; namely, that his relations with the girl were not induced by the promise of marriage, and that he was not the only one to whom like favors had been extended. Nor does his effort to suppress the prosecution by the payment of money necessarily imply that the prosecution was well founded. Taking the entire evidence upon that subject, it seems that the girl and her family were not unwilling to entertain an agreement to abandon the prosecution but for the intervening circumstances which prevented it.

We are not prepared to say that the testimony of the prosecutrix was such as to characterize her consent to the appellant’s relations with her upon a condition of promise. However, the evidence is such as raised an issue upon that subject. At any rate the corroborating evidence is deemed insufficient.

The motion for rehearing is granted, the affirmance is set aside, the judgment is reversed, and the cause remanded.

On Second Motion for Behearing.

LATTIMOBE, J.

The state insists, in support of its motion for rehearing, that we erred in holding the testimony insufficient to corroborate prosecutrix on the point of appellant having obtained carnal knowledge of her by a promise to marry her. We have again carefully reviewed the testimony in the light of the state’s motion. Only three witnesses testified for the state. The mother of prosecutrix and a. witness named Newton were relied on to supply the corroborating testimony. The only thing appearing in the testimony of the mother of' prosecutrix, in anywise corroborative of the proposition of a promise to marry, appears" in the statement made by the witness to the effect that appellant called up her daughter on one occasion, and, finding that the daughter was not at home, asked witness to tell prosecutrix for him that he was leaving, and that he would do all he could for her. The mother said that she knew nothing of appellant keeping company with prosecutrix except by what the. prosecutrix told her. This witness, on redirect examination by the state, further testified that appellant and one Bichard Kennedy came to her house about six weeks before the trial of the case and said they came to settle the business, wanted to settle it in money matters, and that she refused to settle it, telling them that it was in the court’s hands. The conversation was had mainly with Bichard Kennedy.

The witness Newton testified for the state that something like six weeks before the trial he talked to appellant in the district attorney’s office, and appellant said that he went out to talk to prosecutrix for the purpose of settling this case, and that he had offered her some money and wanted to settle it out of court. This appears to be all of the corroborating testimony, and we confess our inability to see how it can be compared with the case of Klepper v. State, 223 S. W. 469, 87 Tex. Cr. R. 597, cited by the state in its motion as authority. We have no doubt of the correctness of the statement in section 200 of Underhill on Criminal Evidence, to the effect that any statement or conduct of a person indicating a consciousness of guilt, where he is charged with or suspected of crime, is admissible as a circumstance against him on his trial; and the fact that he offers to pay money to stifle the investigation or prosecution is mentioned as such circumstance. It seems to have been laid down uniformly by this court that there must be cor-robation of the prosecutrix; both as to the fact of carnal knowledge, and also of the fact that same was obtained by a promise to marry. It would require no argument at our hands to make plain the proposition that it would be utterly impossible to say that the offer of money by Richard Kennedy, the uncle of appellant, even if attributable to appellant who was present, would amount to corroboration of either element of the offense, corroboration of which is necessary.

We believe the matter correctly decided in the original opinion, and the motion for rehearing by the state will be overruled.  