
    JAMES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    1. Seduction (§ 50) — Instructions—Corroboration oe Female.
    On a trial for seduction, an instruction that no conviction could be had upon the testimony of the female alleged to have been seduced, unless corroborated by other evidence tending to connect accused with the offense charged, that the corroborative evidence need not be direct and positive, independent of the prosecutrix, that such facts and circumstances as tended to support her testimony, and which satisfied the jury that she was worthy of credit as to the facts essential to constitute the offense, were sufficient, and that it was for the jury to say from all the facts and circumstances in evidence whether she had been sufficiently corroborated, was erroneous, and the court should have charged that the jury must find that her testimony was true, and also find that there was evidence, independent of her testimony, tending to connect accused with the commission of the offense.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.]
    2. Seduction .(§ 46) — Evidence—Corroboration.
    On a trial for seduction, there must be some fact, independent of the testimony of the pros-ecutrix, tending' to connect accused with the offense, to justify a conviction. -
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.]
    3. Seduction (§ 46) — Evidence—Corroboration.
    On a trial for seduction, letters purporting to have been signed by accused did not corroborate the testimony of prosecutrix, where there was no testimony except hers to show that they came from accused.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. § 46.]
    4. Criminal Law (§§ 763, 764) — Instructions — Weight oe Evidence — Corroboration.
    On a trial for seduction, where there was-no evidence except the testimony of prosecutrix to show that letters purporting to have been written by accused came from him, an instruction that if the jury found that she testified that she received such letters from accused and that he wrote them, but should further find that there were no other facts showing that accused wrote them except prosecutrix’s testimony, then the letters would not be sufficient to corroborate, if they did corroborate, her testimony, and that, unless they found other facts outside of her testimony and the letters tending to connect accused with the offense, they should acquit, was erroneous, as it was on the weight of the evidence, assumed that the prosecutrix’s testimony as to the letters was true, permitted the jury to judge for themselves whether they would consider the letters as corroborative, and allowed them to consider the letters, though not, identified by other evidence than that of prosecutrix, in connection with other evidence, in determining the sufficiency of the corroboration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1781-1748, 1752, 1768, 1770; Dee. Dig. §§ 763, 764.]
    5. Seduction (§ 50) — Instructions—Cobbob-okation.
    On a trial for seduction, there was no evidence, except the prosecutrix’s testimony, to show that letters in evidence came from accused. The court charged that if she testified that she received such letters from accused and that he wrote them, but the jury should find that there were no other facts showing that he wrote them, then they would not be sufficient alone to corroborate her testimony; that unless there were other facts, outside of her testimony and the letters, tending to connect accused with the crime, they should acquit; that if they should find that there were other facts showing that accused wrote the letters, and if the letters corroborated her testimony, they might be considered for that purpose; and that if they should not consider the letters as corroborative evidence but should find, beyond a reasonable doubt, that accused, by promise to marry, seduced the pros-ecutrix, and that her testimony had been corroborated by other evidence, outside of the letters, connecting accused with the offense, they should convict. It refused an instruction that the prosecutrix must be corroborated by testimony other than her own tending to connect accused with the offense, and that, unless the jury found from testimony, other than that of pros-ecutrix, that accused wrote the letters, then they alone would not furnish the corroboration required to warrant a conviction. Held, that the instructions given were erroneous, and that requested improperly refused, since the jury should have been pointedly told that the letters could not be used as corroborative evidence unless there was evidence, independent of that of prosecutrix, tending to show that accused wrote them, and that she could not be corroborated by her own statements regarding them.
    [Ed. Note. — For other eases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Lynch James was convicted of seduction, and he appeals.
    Reversed and remanded.
    C. O. James, of Sulphur Springs, and Jones & Jones, of Mineóla, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexei
    
   DAVIDSON, J.

Appellant was convicted of seduction; his punishment being assessed at eight years’ confinement in the penitentiary. The application for continuance will not be discussed in view of the reversal of the judgment The evidence may be obtained upon another trial.

The court charged the jury: “The law provides that in prosecutions for seduction, under the provisions of the Penal Code,, the female alleged to have been seduced shall-be permitted to testify, but no conviction shall be had upon the testimony of the said, female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged. You are, however, instructed that the corroborative evidence need not be direct and positive, independent of the prosecutrix, Cora Tucker, but such facts and circumstances as tend to support her testimony, and which satisfy the-jury that she is worthy of credit as to the-facts essential to constitute the offense of seduction, as defined and explained in .this-charge, will fulfill the requirements of the láw as to corroboration, and it is for you to-say from all the facts and circumstances in evidence before you whether she has been sufficiently corroborated.” It is urged that this charge is on the weight of the evidence- and assumes that the testimony of the prose-cutrix is true. It does not first require the-jury to believe the testimony of the prose-cutrix true, and that she be corroborated by other evidence tending to connect the defendant with the commission of the offense; and the court nowhere in its main charge makes such requirement of the jury. That this charge also instructs the jury to consider the-corroborative evidence in satisfying their minds as to whether the prosecutrix is-worthy of credit. It instructs the jury that they might apply the corroborative evidence to her and not to the defendant, whereas-the law requires that the corroborative evidence should relate to the guilt of defendant and not to her testimony to show' whether she is worthy of credit, and that it is further erroneous in that it leaves the jury free to consider the question of corroboration in connection with the testimony of prosecutrix,, as though her testimony could be considered in deciding upon necessary corroboration. This charge is erroneous. The court should-, have charged the jury that they must find the-testimony of the prosecutrix true, and in addition they must find there was evidence,, independent of her testimony, tending to connect the defendant with the commission, of the offense, if committed. The criterion, as-we understand our law of corroboration, is that there must be some fact, independent of her testimony, which tends to connect the-defendant with the offense committed. This charge is not in accord with the well-settled rule of jurisprudence of this state. See Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583; Lemmons v. State, 58 Tex. Cr. R. 269, 125 S. W. 400; Garlas v. State, 48 Tex. Cr. R. 451, 88 S. W. 345. This is a sufficient number of cases to cite on this proposition.

Complaint is made that the court erred in admitting certain letters purporting to have been signed by appellant. We are of opinion under the attendant circumstances, that these letters were admissible for what they were worth, but they did not afford any corroboration of the prosecutrix, as shown by this record. There is no evidence, outside of hers, to show these letters ever came from the defendant. Carrens v. State, 77 Ark. 16, 91 S. W. 30; Smith v. State, 58 Tex. Cr. R. 106, 124 S. W. 919; Bishop v. State, 151 S. W. 821. In this connection the court charged the jury: “If you shall find that Cora Tucker testified that she received from the defendant certain letters, which have been introduced in evidence, and that the defendant wrote them, but if you shall further find that there are no other facts and circumstances in evidence which shows that defendant did write the letters, except the testimony of Cora Tucker, then you aré charged that the letters would not be sufficient within themselves and alone to corroborate, if they do corroborate, her testimony; and, unless you find there are other facts and circumstances in evidence outside of her testimony and the letters which tend to connect the defendant with the commission of the offense charged, you will acquit. Or if you shall find that there are facts and circumstances in evidence which show that the defendant wrote the letters introduced in evidence, and if you find such letters do corroborate Cora Tucker’s testimony, you may consider them for that purpose. If, under the foregoing instructions, you shall not consider the letters as corroborative evidence, yet if you find, beyond a reasonable doubt, that the defendant, by promise to marry, did seduce and have carnal knowledge of Cora Tucker, as charged, and that the testimony of Cora Tucker has been corroborated by other evidence, outside of the letters, which tends to connect the defendant with the commission of the offense, you will convict.”

Various objections are urged to these charges. To the first clause of the charge it is urged it is on the weight of the evidence, permitted the jury to judge for themselves whether they would consider the letters as corroborative, and because the court told the jury that said letters would not be sufficient “within themselves and alone to corroborate, if they do corroborate, her testimony,” when in truth and in fact, if they had not been corroborated by some other witness than that of prosecutrix, they could not be considered at all as corroborative of the testimony of prosecutrix, because an accomplice cannot corroborate herself. It is contended, under this paragraph of the charge, the jury was in effect told that, though the letters were not identified by other evidence than that of Oora Tucker, yet they might link in the letters with other evidence in the case, so to speak, in determining the sufficiency of the corroboration. This paragraph assumes what prosecutrix testified about the letters was true. We are of opinion these criticisms are correct.

To the second clause of the charge it is urged that the court assumes that Oora Tucker testified truthfully; is upon the weight of the evidence. It instructs the jury that they might consider certain facts testified by Oora Tucker against the defendant; that the court in said paragraph nowhere tells the jury that they could not consider the letters as corroborative evidence but left the jury to determine for themselves whether they regarded the letters as corroborative or not, thereby giving the jury the power to determine the competency of the evidence.

As to the third clause of the above-quoted charge it is urged that it is confusing, contradictory, uncertain, and on the weight of the evidence, and assumes the prosecutrix testified truthfully, etc., and that the court was in error in not informing the jury that they could not consider the letters at all as corroborating the testimony of the prosecutrix inasmuch as there was nothing in the record to corroborate her statement in regard to the letters. Appellant asked, in this connection, the following instruction: “The law requires that the prosecutrix, Miss Oora Tucker, must be corroborated by other testimony than her own and by such testimony as tends to connect the defendant with the commission of the offense with which he is charged, and, unless you find from the testimony, other than that of said Oora Tucker, that the defendant wrote her the letters introduced in evidence, then in such event the letters within themselves and alone would not furnish the corroboration which the law requires in order to warrant a. conviction of the defendant.” This was refused, and improperly so. The court should have pointedly told the jury that these letters could not be used as corroborative evidence of the testimony of the prosecutrix unless there was other evidence, independent of hers, tending to show that defendant wrote these letters. This record does not show corroboration of the prosecutrix, as we understand the record on this question. The charges given by the court were erroneous, and that requested by appellant was correct.

We have taken up these charges and thrown them together in a general way so as to inform the trial court that upon another trial the jury must be pointedly instructed that prosecutrix cannot be corroborated by her own statements in regard to these letters, and that, in order to show these letters in any way corroborative of her testimony, it must come from matters and things outside of her statement. Curry v. State, 151 S. W. 319; Bishop v. State, 151 S. W. 821; Smith v. State, 58 Tex. Cr. R. 106, 124 S. W. 919; Carrens v. State, 77 Ark. 16, 91 S. W. 30.

Appellant asked special instructions in substance that unless there is evidence outside of and independent of prosecutrix’s tending to connect the defendant with the alleged seduction or act of intercourse, as testified by her, on 18th of May, 1912, the jury should acquit. This was a pointed presentation of the matter, and, in our judgment, this charge should have been given. It is not the purpose of this opinion to go over the testimony in detail. The state’s case in brief was that made by prosecutrix to the effect that on 18th of May he asked to hug and kiss her, which she permitted, and in a few moments he requested final favors, which were granted. She says it was under the promise of marriage. At intervals of from one week to three or four weeks after that until September or October he went with her, amounting to about a half dozen times. We have examined the record with some degree of interest and care and fail to find any corroboration as to a promise of marriage from any source. This is not as strong a case, in-our judgment, as the Bishop Case, cited supra.

For the errors indicated, the judgment is reversed, and the cause is remanded.  