
    LONG v. STATE.
    (No. 3673.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.)
    Criminal Law <&wkey;938 — New Tp.iad — Newly Discovered Evidence.
    Upon his trial for seduction, which resulted in a conviction, defendant’s sole defense was that prosecutrix was not chaste at the time of the alleged seduction. On the trial the witnesses, being excluded under the rule, a bystander who had heard the evidence afterwards volunteered that he had seen prosecutrix in an act of sexual intercourse, but his evidence was not J taken, when he was called, because of a misunderstanding between court and counsel as to the court’s decision as to the effect of the rule. Aside from one witness, who testified to intercourse with the prosecutrix, but was strongly discredited, there was no evidence of unchastity. Defendant moved' for a new trial for newly discovered evidence of other acts of intercourse which corroborated the witness who testified. Defendant swore that he had no notice of the existence of the new testimony. Held, that a new trial should have been granted, since ail such evidence was difficult of discovery, bears directly on the issue, and its weight and credit are for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. <&wkey;938.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Franklin County; J. A. Ward, Judge.
    Dan Long was convicted of seduction. From a judgment overruling Ms motion for new trial for newly discovered evidence he appeals.
    Reversed.
    R. T. Wilkinson, H. L. Wilkinson, L. W. Davidson, and B. O. Shurtleff, all of Mt. Vernon, and C. E. Sheppard, of Sulphur Springs, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of seduction, and his punishment assessed at two years’ confinement in the state penitentiary.

Miss Ethel Hightower, the alleged seduced young lady, by her testimony makes a plain case of seduction. She is fully corroborated as to the promise of marriage and act of intercourse, Jim Williams testifying that appellant had admitted to him he was engaged to marry Miss Hightower during the Christmas holidays, and also had admitted the acts of intercourse. Appellant did not testify, nor offer any proof tending to disprove this state of facts, but rested his defense on the proposition that Miss Hightower was not a chaste and virtuous woman at the time he carnally knew her. The evidence makes a plain case of seduction — acts of intercourse, while appellant was engaged to marry the young lady, she yielding her virtue out of love and affection for appellant, having implicit faith and confidence in him.

There are many errors assigned, but after a careful review of the record we are of the opinion that none of them present error, unless it be that the court erred in refusing to permit the witness Leroy Davis to testify, and erred in refusing to grant a new trial on account of newly discovered testimony. As said before, the defense of defendant was that Miss Hightower was not a chaste and virtuous woman at the time he had carnal knowledge of her. When the case was called for trial, the rule was demanded. The court notified counsel they must call all their witnesses, as he would strictly enforce the rule. Leroy 'Davis had not been summoned as a witness, and be was not called, sworn, and placed under the rule. He remained in the courtroom and heard the witnesses testify until the evening recess. It was made plain .by the testimony by this time that the defense of appellant was that Miss Hightower had been guilty of acts of intercourse with other men prior to the time that appellant had become engaged to marry her. During the evening recess Derby Davis approached appellant’s counsel and told him that about three years before the trial, on a certain Sunday night, on the road between Mt. Yernon and Purley, he saw Thurman Davis and Ethel Hightower have sexual intercourse with each other. When court convened for the night session, appellant’s counsel explained the facts to the court and called the witness. Appellant insists he then called him to testify, and offered him as a witness. The court states he thought counsel was calling the witness to have him placed under the rule, and that he swore the witness, and ordered him to go out under the rule. It is undisputed that at this time the state objected to Leroy Davis testifying, and the court called counsel’s attention to the fact that at the beginning of the trial he had stated the rule would be strictly enforced. Counsel received the impression that the court sustained the objection made by the state. The court says he did not so intend his remarks, but expected the witness to be again called, when he would rule on whether or not he would be permitted to testify, after preliminary investigation. The witness did not testify, and was not again called. As during the trial no witness had testified about whether or not Thurman Davis had ever had sexual intercourse with Miss High-tower, and the witness’ testimony being on a most material issue in the case, it would have been error to have refused to permit him to testify. If he had heard witnesses testify in regard to what he would be called upon to testify in regard to, and his testimony be of a supporting nature, a different issue would be presented. But his testimony that he proposed to give was as to a new alleged fact, about which no witness had been questioned, and under the circumstances shown by this record, it is apparent that appellant was deprived of testimony material to his defense, as the court contends, through misapprehension of his counsel of the court’s ruling. The affidavit of the witness accompanies the record that he would have so testified had he been permitted to do so.

Again, attached to the motion for a new trial is the affidavit of Will McDonald that in the fall of 1912 he saw Miss Hightower and Clyde Anderson in a buggy together, going towards Miss Hightower’s home; that in a hollow near Jack Ferguson’s he saw them stop the buggy; that Miss Hightower was sitting' on the edge of the buggy seat with her legs spraddled apart, and Anderson was between her legs as if they were in the act of intercourse. Clyde Anderson testified on the trial to an act of sexual intercourse with Miss Hightower at this time and place. The state severely attacked his testimony, by offering testimony that Anderson had been paid $100 to so testify, and thus materially weakened his testimony. McDonald’s testimony would have supported Anderson’s testimony, and had a tendency to show that Miss Hightower was not a virtuous girl. Appellant shows he was not aware of the testimony of McDonald until after the trial, and McDonald says he told no one of what he had seen until after the trial.

Guy Barrett attaches an affidavit, in which he says he would have testified, if called as a witness, that he was with Miss Hightower at a picnic at Clearwater in 1912, and on the way home they went out into the bushes and engaged in an act of sexual intercourse. Such testimony as this one cannot ascertain unless it is voluntarily told. Appellant swears positively he was in possession of no information that would have put him on notice that McDonald and Barrett would have so testified.

The state offered rebuttal affidavits which would have a strong tendency to show that the testimony of Barrett and McDonald is unworthy of credit, and the court was authorized to take this into consideration in passing on the motion for new trial. But it strikes us, as appellant on the trial was deprived of the testimony of Leroy 'liavis, and these two new witnesses come forward now and say they would testify to facts which would support the defensive theory of appellant, that he should have been granted a new trial.

The sole issue, as made by appellant on the trial, was that Miss Hightower was not a virtuous female. All this testimony bears directly on that issue, and it is that character of testimony one would have no notice of until informed of it.

As before said, we do not think the other assignments present error, but, taking the view of this newly discovered testimony that we do, and that in this state the credit to be given a witness, and the weight to be given his testimony, is a question for the jury and not the court, we are of the opinion the court erred in not granting a new trial.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., dissents. 
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