
    HOWARD v. STATE.
    (No. 11268.)
    Court of Criminal Appeals of Texas.
    Dec. 21, 1927.
    1. Seduction <&wkey;50(2) — Charge that no conviction for seduction could be had on uncorroborated testimony of prosecutrix held error for failure to require finding of truth of prose-cutrix’s testimony.
    . Instruction that no conviction could be had for seduction on testimony of prosecutrix, unless corroborated by other evidence, 'held erroneous for failure to state, as requested by defendant, that jury must first believe prosecu-trix’s testimony to be true, and must then find that testimony believed to be true was corroborated.
    2. Criminal law <&wkey;72l (3) — Argument is not “comment on defendant’s failure to testify,” unless allusion cannot be reasonably applied to failure to produce other evidence (Code Cr. Proc. 1925, art. 710).
    Oomment of counsel for state in criminal prosecution to come within inhibition of Code Or. Proc. 1925, art. 710, against -alluding to defendant’s failure to testify, must be such an allusion as cannot be reasonably applied to failure of accused to produce other evidence than bis own.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Comment.]
    3. Criminal law <&wkey;72l (5) — District attorney’s argument that prosecutrix’s evidence in seduction prosecution had not been denied held comment on defendant’s .failure to testify (Code Cr. Proc. 1925, art. 710).
    Where, in prosecution for seduction, defendant was only other person who knew of transactions related by prosecutrix, statement of district attorney in his argument that “her evidence has not been denied by any witness on the stand,” held, error as comment on defendant’s failure to testify, prohibited by Code Cr. Proc. 1925, art. 710, especially where court refused to instruct jury that argument was improper.
    Appeal from District Court, Upshur County ; J. R. Warren, Judge.
    •Clestel Howard was convicted of seduction, and he appeals.
    Reversed and remanded.
    Florence & 'Florence, of Gilmer, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for seduction ; punishment being assessed at two years in the penitentiary.

[t] The third paragraph of the court’s charge reads as follows:

“(3) Our law provides that no conviction can be had upon the testimony of the prosecu-trix or female alleged to have been seduced, unless her testimony is corroborated by other evidence tending to connect the defendant with the offense charged. Two things are necessary to constitute this offense, viz. carnal knowledge of the female and the promise of marriage upon the part of the defendant to obtain such carnal knowledge; and the corroboration referred to must be as to both the promise of marriage and the act of carnal intercourse.”

Timely written objection was made to said instruction upon the ground that the court did not inform the jury that conviction could not be had upon the evidence of the prosecutrix, unless the jury first believed her testimony to be true, and showed appellant’s guilt, and, even then, that a conviction could not follow, unless her testimony had been corroborated. Further objection was urged that the charge, as given, assumed that prosecutrix’s evidence was true. There was no amplification of the instruction upon the points criticized. Charges almost in the precise language employed in the present case have been condemned as subject to the objections urged in Garlas v. State, 48 Tex. Cr. R. 449, 88 S. W. 345; James v. State, 72 Tex. Cr. R. 155, 161 S. W. 472; Lemmons v. State, 58 Tex. Cr. R. 269, 125 S. W. 400.

Prosecutrix had testified that two acts of intercourse had taken place between herself ánd appellant; that one occurred at night on the road between her home and that of appellant’s1 father; and the other transpired a few nights later in her own home. No one was present on these occasions but appellant and prosecutrix. Appellant did not testify. A bill is brought forward in which complaint is made that the district attorney in his argument, after reciting the foregoing evidence of the prosecutrix, said: “Her evidence has not been denied by any witness on the stand.” Objection was promptly urged that the remark was an allusion to appellant’s failure to testify. When the objection was interposed, the district attorney said “He had no reference to defendant.” The court was requested to instruct the jury that the argument complained of was improper. The request was refused. • By the testimony of prosecutrix she and appellant were the only two people who knew of the transactions related. Appellant alone could have denied it. To come within article 710, C. C. P. 1925, which inhibits allusion by counsel to the failure of defendant to testify, it has been held that it must be such an allusion that cannot be reasonably applied to the failure of accused to produce other evidence than his own. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580. The argument complained of seems to falls within the rule announced. Moore v. State, 91 Tex. Cr. R. 100, 237 S. W. 938; and eases therein cited. Also see Adams v. State, 87 Tex. Cr. R. 67, 219 S. W. 460; Scarbrough v. State, 98 Tex. Cr. R. 54, 263 S. W. 917; Gothard v. State, 99 Tex. Cr. R. 452, 270 S. W. 177; Grimes v. State, 100 Tex. Or. R. 34, 271 S. W. 898.

The court should have given the instruction requested to correct, if he could, the error which had been committed by the district attorney in such argument.

It is urged that the evidence is insufficient to furnish necessary corroboration as to the act of intercourse upon which the-prosecution is predicated. It becoming necessary to reverse the judgment for the errors already discussed, we pretermit discussion of the testimony, but suggest that upon the point urged there is a dearth of evidence which would present a serious question, unless it is in some way supplemented upon another trial.

The judgment is reversed, and the cause remanded. 
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