
    RHEA v. STATE.
    (No. 7519.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1923.)
    1. Criminal law &wkey;404( I) — Permitting prose- ' cutrix while testifying to hold baby in her arms not error.
    In prosecution for seduction, there was no error in permitting prosecutrix, while testifying as a witness, to hold her baby in her arms, which she said was hers and defendant’s.
    2. Criminal law <&wkey;BI4(l6) — Where evidence showed absence of threats, refusal of charge as to threats not error.
    In prosecution' for seduction, in view of evidence that no threats were made to defendant before he admitted he was engaged to marry prosecutrix and agreed to come and marry her, there was no error in refusing a charge that, if the statements of defendant and his absence for three weeks immediately thereafter were brought about by the threats, they should not be considered.
    3. Criminal law &wkey;>722(2)— Reference in argument to defendant as slick town boy not reversible error.
    Where defendant in seduction prosecution was a town hoy, and the fact that in the opinion of private prosecuting counsel he was a “slick town boy” might have been argued as supported by facts, there was no reversible error in such reference to him in argument.
    4. Criminal law <&wkey;>938(6) — Evidence on material issue based on mistake of fact ground'for new trial.
    In seduction prosecution, where the defensive theory was that prosecutrix was previously unchaste, and did not yield in reliance on defendant’s promise to marry her, and witness stated he had seen her. come to a rooming house with defendant and at a later time with another, and defendant’s other witnesses had stated that such witness’ reputation for truth and veracity was bad, a motion for new trial, based on affidavits of the other witnesses that their testimony at trial was incorrect and based on a mistake of fact and identity, should have been granted.
    5. Criminal law <&wkey;'l 119(4) — Statement of ground of objection not sufficient to establish it as a fact.
    Where witness was asked on cross-examination with reference to his going to a doctor and getting dope to bolster him up, while testifying, as to whether he was a dope fiend and had been using dope that day, and objection to such question was sustained, the mere statement of the ground of objection without other fact in the record to show that the question was asked to discredit witness would not establish it as a fact.
    6. Criminal law &wkey;>589( I) — Refusing to postpone case because of prosecutrix’ remark while witness was testifying not error.
    In seduction prosecution, where prosecu-trix came into the courtroom while witness was testifying, and said, “It is a lie; it is not so; she knows it is not so,” and affidavits of jurors state that, if she made the remarks, they did not hear her, there was no error in refusing to postpone the case and permitting defendant to withdraw announcement of ready.
    7. Seduction <&wkey;50 (3) — Charge as applicable to issue of prosecutrix’ chastity not objectionable.
    In seduction prosecution on the issue of prosecutrix’ chastity and the good faith of the claim of reliance on the promise of marriage, it was not error to charge that, if the first act of intercourse was induced by other means than a promise to marry, on which she relied, or, if there was reasonable doubt as to whether defendant promised to marry her, or whether she was under 25 years of age at the time of such first act of intercourse, then to acquit.
    8. Witnesses. <&wkey;236 (I) — Asking prosecutrilx In seduction case whether she loved defendant not objectionable.
    In seduction prosecution asking prosecu-trix on direct examination whether “at the time you had intercourse the first time, tell the jury whether or not you were in love with him,” was not objectionable.
    9. Witnesses <&wkey;357 — Witness testifying to reputation may be asked if it is such as entitled him to belief on oath.
    After witness testifies that the general reputation of another witness is bad for truth, he may be asked if that general reputation is such as to entitle him to belief on oath.
    10. Criminal law &wkey;>4l9, 420(10) — Statements of one as to relations with prosecutrix held hearsay.
    Evidence of a witness in seduction prosecution that he had heard parties talking in the express office at night, and that the night express man had stated the next morning that prosecutrix had been in there with him was hearsay.
    11. Criminal law <&wkey;l087(2) — Bills of exception not in record proper not considered.
    Unless their failure so to appear is shown to be result of improper action of officer of court below, bills of exception which are not in the record proper will not be considered.
    @¿AFor other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    A. D. Rhea was convicted of seduction, and he appeals.
    Reversed and remanded.
    Cooley & Crisp and Ross Huffmaster, all of Kaufman, for appellant.
    H. R. Young, Co. Atty., and Wynne & Wynne, all of Kaufman, and R. G. Storey, Asst. Atty. Gen., for the State.
   BATTIMORE, J.

From a conviction for seduction in the district court of Kaufman county with a penalty of five years, appellant appeals.

Appellant was a barber living in the town of Kaufman. Prosecutrix was at work in a telephone office in said town, and the two met and began to keep company. Without going into details, prosecutrix testified that after going with appellant some time he proposed marriage to her, and they became engaged in January, 1921, the wedding to take place in April, and that on the 20th of March, relying upon appellant’s promise to marry her, and his insistence upon his intention so to do, and her affection for him, she yielded her person to him. She also testified to subsequent acts from one of which she became pregnant, and was delivered of a child. A sister and brother of prosecutrix testified' for the state to conversations had with appellant which, if true, sufficiently corroborated her in her claim that there was an engagement to marry. Appellant denied any promise to marry, but admitted his intercourse with prosecutrix upon a number .of occasions. He also sought to show by witnesses acts of intercourse with other parties prior to the time of the act relied upon by the state.

There are a number of bills of exception in the record which are not brought forward or discussed in the able brief filed by appellant’s counsel. We have carefully examined each of those not so discussed, and find nothing in them calling for a reversal, and our discussion here will be of those points presented in the brief. Appellant’s first complaint is of the- fact that, when the state introduced prosecutrix as a witness, she was permitted to take the stand, and while giving her testimony to hold in her arms a baby which she said was her and appellant’s. There is a bill also complaining of the fact that the child fretted, and that one of the prosecuting attorneys took it in his arms and carried it in the presence of the jury to another person in the courtroom. This court held in Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477, and in Whitehead v. State, 61 Tex. Cr. R. 558, 137 S. W. 356, that the state might prove by prosecutrix that the accused was the father of the child which she had in her arms in the presence of the Jury. We are cited to no authority holding to the contrary. We have examined the cases of Stracner v. State, 36 Tex. Cr. R. 89, 215 S. W. 305; Gleason v. State, 77 Tex. Cr. R. 300, 178 S. W. 506; Gray v. State, 43 Tex. Cr. R. 300, 65 S. W. 375, and Adams v. State, 87 Tex. Cr. R. 67, 219 S. W. 460, cited by appellant in support of his contention. In the opinion in the Stracner Case, supra, Judge Davidson distinctly says that facts corresponding to those in -the instant case do not constitute ground for reversal. In the Gleason Case, supra, the child was introduced in evidence, and this was held reversible error. Gray v. State, supra, was a rape case, and has no pertinence.so far as we can see. In Adams v. State, supra, the opinion of the court reversed the case upon various points, one .of which was. because of argument of the state’s attorney upon the resemblance of the child, which was held in the lap of prosecutrix, and the appellant. We do not think it authority for the contention here made by appellant. In the instant case it is made to appear that the young woman brought her baby into the courtroom when the witnesses were called to be sworn, and that she carried it into the witness chair with her, where it remained quiet for a while, and then began to fret, and that one of state’s counsel removed it, and carried it to some other person. There was no proferí ofv the baby in evidence, no comment upon its appearance, and as far as the record reveals no effort made to institute any comparison between it and appellant in any way.

Appellant asked a special charge, in substance, that the jury should not consider a statement claimed by the state to have been made by him to the sister and brother of prosecutrix to the effect that he would come out and marry her, if they believed that said statement was induced by reason of threats made by said parties to him; and further that, if they believed appellant went away from the city of Kaufman for about three weeks, and that his absence also was brought about by reason of threats, the jury should not consider any of said evidence against him. If the evidence supported the proposition that any threats were made against appellant by the relatives of the prosecutrix, and that he acted in a given manner because of such threats, we would still think it improper for the court to instruct the jury not to regard his actions as evidence against him in such case. It might become a question for the jury to decide the extent to which the actions referred to were criminating in their character, and the weight to be attached to such actions if brought about by threats, but we know of no rule requiring the jury to be told that such evidence could not be considered at all. However, neither the brother of prosecutrix when testifying for the state, nor the appellant when testifying for himself, attributed any threats to said brother. The sister of prosecutrix testified that when she learned of her sister’s condition she went to Kaufman, and had a talk with appellant. According to her testimony she said to him: “You were engaged to my sister before you ever touched her,” and he replied, “Xes,” and that he was going out the next day to marry her, and would be there in the evening. Witness said she then told him he had better come there before evening, and that he replied he would come the next morning and' go to Dallas and marry her. On cross-examination witness said that after appellant had promised to come out and marry her sister that she then said to him: “If you dont come, papa will be up her on to you, my papa will kill you.” She was very positive that- no threat was made before he made the admission that he was engaged to marry her sister and until after he had promised to come out and marry her. Referring to tliis occasion appellant ■ when on the witness stand said they wanted him to marry prosecutrix that evening; that he did not tell her sister that he had promised to marry prosecutrix; that he did not tell .said sister that he would be out there and get prosecutrix and take her to Dállas and marry her. Appellant said that he did not go out there the next day, but that he left Kaufman that evening and went to Fort Worth, and stayed over there two or three weeks, and that the reason he left town was because he did not want any trouble with the father of prosecutrix; that he thought it would give him a few days to get over his mad spell and study it over. In view of this testimony we do not think any error was committed in the refusal of the special charge. The principle of law applicable to a state of facts referred to in the charge has no application to the actual facts in testimony from the witnesses herein.

There is complaint in two bills of ex-' ception of the action of private prosecuting counsel in argument in referring to appellant as a “slick town boy.’’ The authorities cited, to wit, Cannon v. State, 84 Tex. Cr. R. 479, 208 S. W. 660, and Jupe v. State, 86 Tex. Cr. R. 573, 217 S. W. 1041, seem to us to have no bearing. In the Cannon Case no complaint was made of any particular reference to the appellant, but inflammatory appeals were indulged. In Jupe’s Case, supra, the state’s attorney called the appellant a cowardly cur, and the use of such language was condemned. There is no question but that appellant was a town boy, and the fact that in' the opinion of the attorney he was a “slick town boy” might be argued as supported by facts. The language used has no particular meaning, and we would not deem it reversible error. We find no bill of exceptions in the record complaining of the refusal to give a charge to the jury not to consider the argument with reference to the future of the baby of the prosecutrix.

It is made to appear that two witnesses for appellant were cross-examined by the state, and asked with reference to their knowledge of the general reputation flor truth and veracity of another of appellant’s witnesses, Arthur Alexander, and that they said they knew same, and that his reputation for truth and veracity was bad. As one of the grounds of his motion for new trial appellant sets up the fact that the testimony of said witnesses on that point was untrue, and -was given under a mistake of fact, and the affidavits of the two witnesses in question are appended to the motion for new trial.

An examination of the authorities cited by appellant as well as others indicates that this court has almost uniformly held- that when witnesses who testified to material facts upon the trial come forward and make affidavits in support of the motion for'-new trial, stating that their testimony as formerly given was incorrect and was based upon a mistake, of fact, new trials should have been granted. Practically the entire defensive theory of this case was that the prose-cutrix was of previous unchaste character, and that she did not yield herself to appellant in reliance upon any promise to marry. As supporting this, appellant offered as a witness one James, who testified that he had had carnal knowledge of prosecutrix before she began going with appellant. The state introduced a number of witnesses who testified that James’ reputation for truth and veracity was bad. When prosecutrix was giving her testimony she stated that she became engaged' to appellant in January, and went to Dallas during the February following and worked in a hosiery factory, and further stated that twice during the month of February appellant came to Dallas to see her; but she denied having gone with him on either of these occasions to a rooming house, and also that she ever went to any rooming house in Dallas with any man. Appellant offered Arthur Alexander, who testified that he spent two weeks in February of that year at Wallace Hill’s rooming house in Dallas, and that while there on one occasion he saw prosecutrix come to the rooming house with appellant, and on another occasion saw her come there with another man. The state proved by the two witnesses that Arthur Alexander’s reputation for truth and veracity was bad.

As part of his motion for new trial, appellant asserted that the two witnesses who testified that the reputation of Alexander for truth and veracity was bad had done so under a mistake of fact, and that in truth and -in fact they did not know Arthur Alexander, and did not know his reputation, ■ but had confused him and his reputation with the identity, and reputation of Alexander’s brother. The affidavits of each of said witnesses sustaining this contention of appellant were appended to and made a part of the motion for new trial, as we have above stated. We are inclined to think that under the authorities the action of the learned trial judge in refusing the motion for new trial upon this ground was erroneous. Banks v. State, 92 Tex. Cr. R. 523, 244 S. W. 1015; Barber v. State, 87 Tex. Cr. R. 585, 223 S. W. 457; Estrada v. State, 29 Tex. App. 169, 15 S. W. 644; Brown v. State, 42 Tex. Cr. R. 176, 58 S. W. 131; Carter v. State, 75 Tex. Cr. R. 110, 170 S. W. 739. In this connection we feel impelled to call attention to the testimony of the prosecutrix herself. She emphatically denied carnal relations with any other man than appellant, and asserted that she had but three acts of intercourse with him, the dates of each of which she gave, one being March 20, 1921, another April 3d following, and another April 17th. She further testified tliat ter baby was born on February 2, 1922, and that appellant was its father. ' Slight calculation reveals that nine months anterior to February 2, 1922, would date back to May 2, 1921, and would lead to the observation that if nine months be'the normal period of pregnancy from conception to birth of the child, that such conception in this case would likely have occurred about May 2, 1921. We further observe in the testimony of prosecutrix a statement by her that she missed her period on April 14, 1921, rollowing an act of intercourse with appellant on April 3d. If the act of intercourse preceding the stoppage of menstruation on tbe part of prosecutrix caused conception, we would thus have apparently a period extending from April 3, 1921, to February 2, 1922, ,or nearly ten months. Attention is called to this because of the fact that the young woman may have been mistaken in some of her testimony, but if adhered to by her it would seem to indicate that her baby born February 2d, could hardly be the result of the intercourse with this appellant on April 3d, or April 11, 1921.

Cpmplaint is also made of the fact that the state was permitted, to ask the witness Arthur Alexander on cross-examination with reference to Ms going to Dr. Shaw and getting some dope to bolster him up while he testified, and as. to whether he was a dope fiend ¿nd had been using dope the day he gave testimony. .An examination of the bill of exceptions wholly fails to reveal any misconduct on the part of the state in this regard. It is true that the bill shows the state asked the question and that appellant objected for the stated reason that there was no ground for such question, and that same was asked for the sole purpose of discrediting witness before the jury and to thus destroy the force and effect of his testimony. The objection was sustained, but nothing further appears in the record to sustain the proposition-that the purpose of the state was as contended, or to show that they did not ask the questions in good faith. Unless there .be some such showing, this court could not appraise the weight to be given to such objection. Numerous authorities could be cited holding that the mere statement of a ground of objection is not sufficient to establish same as a fact.

It is also insisted that because the prosecuting witness came into the courtroom while another witness was testifying and said: “It is a lie. It'is not so, she knows it is not so,” that the learned trial judge should have granted appellant the privilege of withdrawing his announcement of ready and have postponed the case. This was made a ground of the motion for new trial, and its manner and effect was controverted by the state. The affidavits of a number of jurors appear in which they uniformly state that the prosecuting witness, if she made the statement, was so far from them that they did not hear what she said, and that there was no discussion of same by them at any time. We are not impressed by the fact that there was any error in the action- of the lower court in refusing to postpone the case on account of this occurrence.

We find an exception to that part of the charge of the trial court, which reads as follows:

“If you believe that the first act of intercourse between the defendant and Edna Cobb was induced or brought about by any means other than by a promise of marriage made by defendant to her, upon which she relied, or if you have a reasonable doubt thereof, you must acquit the defendant, or, if you have a reasonable doubt as to whether defendant had promised to marry her, you must acquit the defendant, or, if you have a reasonable doubt as to whether Edna Cobb was under 25 years of age at the time of the first act of intercourse betwen defendant and the said Edna Oobb, you will acquit the defendant.”

This paragraph of the charge so excepted to is but one of a number of those paragraphs applicable to the issue of chastity of the prosecutrix at the time of the first act of intercourse, and the good faith of her claim of réliance only on the promise to marry. We do not believe the charge taken as a whole calculated to cause any confusion in the minds of the jury, or that the charge complained of presents any erroneous proposition.

By bill of exceptions appellant presents complaint of the action of the state ijj asking prosecutrix, “At thd time you bad intercourse the first time, tell the jury whether or not you were in love with him,” to which the witness answered, “I was in love with him with the intention of being his wife; that is what I thought.” We do not consider the question objectionable. Gleason v. State, 79 Tex. Cr. R. 190, 183 S. W. 891. Any question not illegal in form bringing out fairly and legitimately testimony supporting the proposition that the yielding of prosecutrix was wholly through love and affection for appellant, and in reliance upon his promise to marry, would be admissible.

Complaint is made by several bills of exception that witnesses who had testified to the bad reputation of appellant’s witness Palmer were asked whether or not based on such reputation Palmer was entitled to belief on oath at the hands of the jury. Mr. Branch cites a number of authorities in his Annotated P. O. p. 116, sustaining the proposition that, after a witness testifies that the general reputation of another witness is bad for truth, he may be asked if that general reputation is such as to' entitle him to belief on oath.

Appellant sought to prove by his witness Norwood tRat he worked at the express office at the same time that witness Palmer worked there, he working in the daytime and Palmer at night, and that each had a key to the office, and that Miss Cobb, prose-cutrix, worked in a nearby office, and that he frequently heard parties talking in the express office at night when the door was locked, and that later the floor of the office was tom up and rubbers used in acts of'intercourse were found, and that Palmer told him that he and prosecutrix were the parties in the office so heard by witness. That the trial court was correct in the rejection of the testimony is plain. It would be rank hearsay to permit the witness to testify that Palmer told him that the parties heard in the office were himself and prosecutrix. It does not even appear from the bill of exceptions that the witness offered to testify that he at any time heard a woman’s voice in the express office at night. This court must decline to consider or discuss bills of exception which are not in the record properly, unless their failure to so appear is shown to be the result of improper action on the part of some 'officer of the court below. The purported bill of exceptions made a part of appellant’s brief herein cannot be considered, as it comes within the character just described.

We have thus carefully examined and discussed the various contentions raised by appellant in view of the reversal of this case, and in order that the matters here presented may not arise in case of another trial.

Por the errors above mentioned the judgment will be reversed and the cause re-■mahded.  