
    BUSH v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.
    Rehearing Denied June 11, 1913.)
    1. Criminal Law (§ 595) — Continuance-Absence oe Witnesses — Denial—Discretion.
    Denial of a continuance, in a prosecution for seduction, ■ because of the absence of two witnesses by whom defendant expected to prove that each “had hugged and kissed” prosecutrix more than two years prior to the commission of the offense, was not an abuse of discretion.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §.§ 1311, 1323-1327; Dec. Dig. 595.]
    2. Seduction (§> 45) — Promise oe Marriage ■ —Evidence.
    Evidence held to sustain a conviction of seduction under promise of marriage.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 80-82; Dec. Dig. § 45.]
    3. Seduction (§ 50) — Prosecutrix’s Testimony — Corroboration.
    An instruction in a prosecution for seduction, that the corroboration of prosecu-trix’s testimony must extend to and include the promise of marriage, if any, and the act of intercourse, and that her testimony connecting defendant with the commission of the offense must not only be corroborated but the jury must believe beyond a reasonable doubt that it is true,” that her testimony is true, and that she has been corroborated by other evidence “connecting” defendant with the offense charged, was not prejudicial to defendant, but was too onerous to the state.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.]
    
      4. Seduction (§ 29) — Ohtense—What Constitutes. i
    An instruction, that seduction is not complete unless the female alleged to have been seduced be at the time a chaste person unmarried and under 25 years of age and was persuaded to surrender her chastity and have carnal intercourse with defendant by reason of his promise to marry her and must have relied upon said promise and must not have surrendered her virtue or yielded to his desires through any other consideration, was proper.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 53; Dec. Dig. § 29.]
    5. Criminad Law (§ S29) — Request to Charge — Insteuctions Given.
    It is not error to refuse requests to charge substantially covered by instructions given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §■ 2011; Dec. Dig. §¡ 829.]
    6. Seduction (| 50*) — Instructions.
    An instruction, in a prosecution for seduction, that if prosecutrix ever had intercourse with a “man” other than accused, the jury should acquit, was not misleading in excluding possible intercourse between prosecu-trix and a “boy”; there being no evidence, on the issue of prosecutrix’s alleged intercourse with another than defendant, that she had ever been intimate with a “boy.”
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 89-92; Dee. Dig. § 50.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Jess Bush was convicted of seduction, and he appeals.
    Affirmed.
    C. P. Chastain, of Hamlin, and Chapman & Coombes, of Anson, for appellant. ' C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Por other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted, charged with seduction, adjudged guilty, and his punishment assessed at five years’ confinement in the penitentiary.

In the first bill of exceptions he complains of the action of the court in overruling his application for a continuance on account of the absence of two witnesses, by whom he states he expects to prove that each of them “had hugged and hissed” the alleged injured female. The record discloses that, if either of the persons named had ever been with Miss Dutton, it was long prior to the date of the alleged seduction; that appellant, and appellant alone, had visited her for two years immediately preceding the date of this trial; and that the absent witnesses had not been with her during that period of time; and, under the record in this case, the testimony is not of that material nature which wmuld enable us to say that the court abused his discretion in overruling the application for a continuance.

The next bill complains of the insufficiency of the testimony. Appellant testified in the case, and admitted that he, and he alone, had been going with Miss Dutton, for about two years; that he went with her frequently, and she visited the best people in the neighborhood, going with her to parties, to church, and other places. He also admitted having sexual intercourse with her .on the occasions stated by her, but he denies that he was engaged to marry her at the time, or that he had ever promised to marry her. We think the facts and circumstances in the case corroborate her as to the material issues in the case.

The court instructed the jury that the corroboration of Miss Dutton’s testimony “must extend to and include the promise of marriage, if any, and the act of intercourse,” and the charge on accomplice testimony is one frequently approved by this court, and in fact it is not only not subject to the criticism made by appellant, but is more onerous on the state than the law requires, for it required not only that her testimony connect the defendant with the commission, but also required the jury “to believe beyond a reasonable doubt that her testimony was true, and that she has been corroborated by other evidence connecting the defendant with the offense charged.”

The criticism of the definition of the word “seduce” is without merit. The definition is full and complete, and this paragraph instructs the jury: “The crime of seduction is not complete unless the female alleged to have been seduced be at the time of the act a chaste person, unmarried, and under the age of 25 years, and was persuaded to surrender her chastity and have carnal intercourse with the man by reason of his promise of marriage to her, and must have relied on the promise of marriage, and must not have surrendered her virtue or yielded to his desires through any other consideration.”

There was no error in refusing the two special charges requested, as they were fully covered by the court in his main charge. The court instructed the jury that if Miss Dutton was not a chaste woman, or if she had ever had intercourse with any other man, or if she yielded her person upon a conditional promise of. marriage, or if she yielded because of her own amorous desires, or the jury had a reasonable doubt on either of these issues, appellant would not be guilty of any offense, and was a fair presentation of every issue in the case.

The criticism that “the court erred in instructing the jury that if she ever had intercourse with a man, to acquit, in that the jury might have been misled, because it might have been a boy who had intercourse with her,” is hypercritical, and has no foundation in the testimony. The only person besides appellant who testified he had ever had intercourse with Miss Dutton was defendant’s brother, and the evidence discloses he is a full-grown man. However, Miss Dutton denies ever having had intercourse with this brother.

We have carefully reviewed each ground in the motion for new trial, and none of them present reversible error.

The judgment is affirmed.  