
    Nelson A. Johnson v. The State.
    No. 4074.
    Decided June 21, 1916.
    Rehearing denied October 4, 1916.
    1.—Seduction—Sufficiency of the Evidence.
    Where, upon trial of seduction, the testimony of the prosecutrix was sufficiently corroborated, and the evidence further sustained the conviction, there was no reversible error.
    
      2. —Same—Evidence—Character of Prosecutrix—letters.
    Upon trial of seduction, there was no error in excluding certain letters written by the prosecutrix to the defendant long subsequent to the date of the alleged seduction, and which were of a very obscene character; on the ground that this testimony had no probative force as tending to show that the prosecutrix was unchaste at the time of her seduction by the defendant. Davidson, Judge, dissenting.
    3. —Same—Evidence—Acts of Prosecutrix—Character of Prosecutrix.
    Upon trial of seduction, there was no error in excluding testimony showing that the prosecutrix associated with a woman who became pregnant and made some man marry her, in the absence of testimony showing that the prosecutrix and said woman intimately associated together, otherwise than that they worked at the same laundry, besides there was no attempt to prove the general reputation of the prosecutrix to be bad for chastity, or that she had been unchaste before the date of the alleged seduction. Distinguishing Yeter v. State, 52 Texas Grim. Rep., 212, and other cases. Davidson, Judge, dissenting.
    4. —Same—Evidence—Moral Turpitude.
    Upon trial of seduction, there was no error in not permitting the defendant to ask the prosecutrix, on cross-examination, if she had not been charged in the Justice Court by complaint some three or four years prior to the instant trial, with theft of a diamond ring, etc., in the absence of an indictment, and in view of the fact that several grand juries had since met and adjourned subsequent to filing of such complaint. Following Williamson v. State, 74 Texas Grim. Rep., 289, and other cases.
    5. —Same—Evidence—Child’s Picture.
    Where, upon trial of seduction, testimony was admitted over the objection of the defendant that he had a picture of the baby of the prosecutrix, but the court subsequently thereto withdrew such testimony, there was no reversible error. Following Miller v. State, 79 Texas Grim. Rep., 9.
    6. —Same—Evidence—Character of Prosecutrix.
    Where, upon trial of seduction, the defendant never offered to prove nor did he claim to have ever seen anything improper about the conduct of the prosecutrix or to have had any personal knowledge of any act of- sexual intercourse outside of his own, there was no error in not permitting the defendant to answer a question whether he had ever heard of anyone having had intercourse with the prosecutrix.
    7. —Same—Charge of Court—Requested Charges.
    Where, upon trial of seduction, the court correctly submitted in his charge to the jury all the issues raised by the evidence, there was no error in refusing special charges requested by the defendant which were not applicable to the facts.
    Appeal from the Criminal District Court of Harris. Tried below • ■ before the Hon. C. W. Robinson.
    Appeal from a conviction of seduction; penalty, five years imprisonment in the penitentiary.
    The opinion states the case.
    
      Heidingsf elders, for appellant.—On
    question of the insufficiency of the evidence: Spenrath v. State, 48 S. W. Rep., 192.
    On question of evil association: Caviness v. State, 42 Texas Crim. Rep., 420, and cases cited in opinion.
    
      On question of moral turpitude: Cases cited in opinion.
    On question of baby’s picture: Kirk v. State, 35 Texas Crim. Rep., 224; Barnes v. State, 39 id., 184; Mathews v. State, 69 id., 639.
    On question of excluding testimony whether defendant had heard of anyone having had intercourse with prosecutrix: Hart v. State, 76 Texas Crim. Rep., 339; Carter v. State, 59 id., 73.
    
      G. G. McDonald, Assistant Attorney General, Jolm H. GrooTeer, T. J Harris, and H. T. Branch, for the State.
    On question of moral turpitude: King v. State, 67 Texas Crim. Rep., 63, 148 S. W. Rep., 324, and cases cited in opinion.
   DAVIDSON, Judge.

Appellant was convicted of seduction, his punishment being assessed at four years confinement in the penitentiary.

Prosecutrix testifies to protestations of love by defendant and her reciprocation; that she had never had intercourse with any other man prior to her first act of intercourse with defendant. She says this continued for nearly three years. She gave birth to a child. Its paternity she attributes to defendant. Appellant admits the intercourse, but denies the seduction and promise of marriage. Hnder his theory the testimony did not dignify the offense as being higher than that of illicit intercourse which would constitute fornication. There are some facts and circumstances in the case elicited from her which tend to show that she may not have been as pure and chaste as the State contends. Some'of her association and acts tend to somewhat impair her purity of thought and mind. She denied, however, that she understood the environments to be of an impure nature. It is not the purpose of this opinion to go into a detailed statement of those matters.

This brings up one of the bills of exception which shows defendant offered to prove that one of the girl associates of prosecutrix fell by the wayside and gave birth to a child; that this girl subsequently married the author of her shame. There is also evidence about some other matters. The appellant then offered to prove tin cross-examination of the girl that she associated with the girl who married her betrayer subsequently, and after she had given birth to the child. We are of opinion that on another trial this testimony should be admitted. This happened before prosecutrix says her illicit intercourse began with appellant. It has been held in several cases that the unchaste character of the associates of prosecutrix can be shown as affecting her chastity.

There 'are quite a number of bills of exception to the refusal of the court to permit appellant to introduce in evidence letters written by prosecutrix to himself. The bill shows the court had admitted letters written by defendant to her. These letters should have been introduced. The contents of the letters are remarkably vulgar, obscene, unchaste and impure, so much so that the trial judge for that reason would not permit them to go to the jury. Another ground why he refused to admit the letters was that they were written after the alleged seduction.

There is also another bill showing some prose and poetry that is as obscene and dirty as is possible to have been written. In all of the cases of seduction that have come before this court no language in any of them has approximated the vulgarity and obscenity of those offered in evidence and rejected by the court. Prosecutrix had testified she had never had intercourse with any other man, but the letters show a familiarity with indecencies and impurities that' is not compatible with the thoughts or words of purity or chastity. It may be questioned that in any brothel of the lowest order more indecent language could be uttered. The fact that these matters occurred after the alleged seduction is not a reason why they should not be introduced. They bore directly upon the chastity and the credibility of the witness. The jury could well consider that a woman who would use such language as set out in those letters and the expression used in the poetry was of an impure and unchaste mind. They were so impure that the trial judge would not permit them to be read in his court. These matters are, however, all perpetuated in bills of exception. Seduction does not consist in the mere promise to marry followed by acts of sexual intercourse. The woman must be pure and chaste to be the subject of seduction. It would hardly be contended that an impure and unchaste woman could be seduced by the promise alone of marriage. If so then the promise to marry a lewd woman would form the basis of seduction. This statute was intended to protect the virtuous and the pure. It was intended to punish the seducer of chaste women. The unchaste and the prostitute are not the subject of seduction. In order to constitute seduction the purity of a woman must be overcome, led away and then illicit intercourse occur by reason of promise of marriage. However pure the woman may be under this statute, seduction will not be consummated alone by the act of intercourse. There must still be the further constituent element shown, that is, the chastity. If she is led away by her affection or for any reason she submits, it would not be seduction unless the promise of marriage also enters into the case. Immorality, fornication and adultery do not form a basis of seduction. The jury might well believe from reading these letters that she was not at the time of her first intercourse a pure and chaste woman. The rejection of this testimony by the court on account of the vulgarity and obscenity is creditable to his high sense of chivalry, but the defendant was on trial for seducing a chaste woman, and any fact that shows her to be of an unchaste and impure character is admissible to show that fact, whether it occurred within a reasonable time before or subsequent to the alleged seduction. It has also been held in this State, and correctly, that long continued intercourse of an illicit nature between the prosecutrix and her alleged seducer may be also evidence of the fact that she was not seduced, and it tends to show the converse. It has the effect or may show that it was not seduction but fornication.^ What the result of the verdict would have been with this testimony before the jury may be a matter of speculation. We can not tell about its result or effect on the jury, because it was not permitted to go to them. The very reason the court gives for exclusion is one of the strongest reasons for its inclusion. Its vulgarity and obscenity does not afford a ground for rejecting the evidence. It affords a stronger reason why the letters should have been introduced. The writer does not care to place in the jurisprudence of the State the contents of these letters. It would serve no useful purpose, but it may have been of great value to the defendant to show the condition of the woman’s mind at the time of her alleged seduction. On another trial this testimony will be admitted in evidence.

There is another bill of exceptions reserved to the action of the court, which will not occur upon another trial. It shows while the appellant was upon the witness stand he was asked with reference to a picture of the child of the prosecutrix. The judge stated that it would be legitimate in connection with certain matters which might tend to induce the jury to believe that it was his child by reason of the resemblance to appellant. Subsequently, however, he withdrew the matter from the jury. This character of testimony under the authorities of Texas is not permissible.

We are of opinion that the court was in error with reference to the letters especially, and the court should have awarded appellant a new trial.

The judgment is reversed and the cause remanded.

Reversed and, remanded.

ON REHEARING.

June 21, 1916.

PBENDEBGAST, Presiding Judge.

Upon the urgent insistence of counsel for the State, we have again carefully reviewed this case and the questions upon which it was reversed in the original opinion. We have reached the conclusion that we were in error in the original opinion.

It is unnecessary to recite all of the testimony. That of the alleged seduced girl makes out a clear and strong case against appellant. She is positively corroborated and amply so by several witnesses and many circumstances as to every material fact necessary. The promise of marriage was not only positively testified to by the prosecuting witness but also by her sister and father and an intimate friend of appellant himself. Appellant shows by his own testimony that he frequently saw and knew the girl by sight some two or three months before he was introduced to her in April, 1911, and that from that time on until June 25th, following, when he accomplished her ruin, he assiduously devoted himself to her, calling upon her several times a week and frequently taking her out to different functions, swearing: “I gradually worked up to the proposition of having intercourse with that girl. . . . I was trying all the time, every time I went out there.” After he succeeded in accomplishing her ruin, he and she both swear that from two to three times, and many times oftener, each week thereafter for a long time, he continued to have sexual intercourse with her, she swearing that all this occurring under his repeated promises to marry her at a later date, which was fixed by agreement between them. This continuous relationship existed between them until September, 1912, when he left the State for Hot Springs, Ark., where he went for treatment for the cigarette habit. He remained away many months on this occasion, the girl claiming that he promised all the time to fulfill his promise to marry her as soon as he got physically and financially able to do so. When he returned to Houston he resumed his former sexual relationship with the girl, and soon thereafter got her in “a family way.” She informed him of it and continuously pressed him to carry out his promise and marry her, so she testified. He as persistently refused but kept up his relationship with her until she was about five months “gone”; and when she persisted that if he would not marry her a prosecution might ensue, he thereupon suddenly again left the State, and soon learned while out of the State that, the-officers were after him, and he skipped about over the country evading arrest for about eighteen months. We think this record with practical and all reasonable certainty shows that he not only deliberately set about to accomplish the ruin of this girl, and did do so, under his promise of marriage to her, but that he persistently also set about to prostitute not only her body but her mind and language also. He succeeded in debauching her body within about three months after he set about to do so, but it took him more than a year and a half by his vile and baneful tutorage to prostitute her mind and words, for it was some sixteen months after he seduced and debauched her before he succeeded in having her to write to him a letter wherein any indecent or vulgar or profane word was used, and it was some time thereafter before he succeeded in having her to write other worse letters to him, and more than two years till he succeeded in having her write for him the vile and indecent poetry she did. It seems he took particular pains to preserve all these writings by her to him, for on this trial he produced them, had her identify them as having been written by }ier, and he offered them in evidence. Evidently it took him more than two years under his vile and baneful tutorage to induce this girl to write such documents to him. The latter ones especially are correctly characterized -by Judge Davidson in the original opinion.

The testimony further shows, and the jury by the effect of their verdict expressly found, that prior to the time this girl came into the clutches of appellant, she was a chaste and virtuous girl, not only in body, hut in words and mind also, and -that prior to his ruin of her she had never before had an act of intercourse with anyone. The proof also fails to show that prior to appellant’s contact with her and training of her, as stated, she ever used any vile, vulgar, indecent or profane language.

The testimony shows that the alleged seduced girl, Ella Braun, for some time before, and a long time after, appellant’s connection with her began, was a working girl, thrown on her own resources;'that she worked in a laundry in Houston. After she had given her testimony as a witness for the State, on her cross-examination appellant’s bill of exceptions No. 2 shows that he asked her: “Q. ‘Did you know Verna Gecosky. at the laundry ?’ A. ‘Yes, sir.’ Q. Tsn’t it a fact that she became pregnant and made some man marry her ?’ ” The State objected to this as immaterial. Neither the bill nor record otherwise shows, or attempts to show, that Ella Braun associated with said Gecosky girl otherwise than that they worked at the same laundry. They did not live together. They did not otherwise associate together, and no intimation is made that even while they worked in the same laundry Ella Braun knew anything about the associates or conduct of the Gecosky girl. In approving the bill the court qualified it by stating that the defendant did not at any time during the trial prove, or offer to prove, the general reputation of the prosecutrix for chastity was bad, nor was there any evidence in the entire record showing that before she was seduced by defendant she was other than a pure girl. This bill, and the entire record, in no way comes within the principles laid down in Caviness v. State, 42 Texas Crim. Rep., 420, and Jeter v. State, 52 Texas Crim. Rep., 212, nor any other case decided by this court. We were, therefore, in error in the original opinion in holding that the court erred in excluding, the answer of the witness shown by said bill. The trial court was correct in excluding it.

. It is true that it has frequently been held by this court that the course of conduct of an alleged seduced girl soon after the claimed seduction and before then, with others, and the language she uses or writes to others about the same time, are admissible, but it has. never been held that such matters are admissible when they occur a long time after the alleged seduction and are not shown to have any connection with the acts of such girl before the alleged seduction or at some reasonable time soon thereafter. Appellant has a large number of bills to the action of the court in excluding said letters and poetry documents from the jury on the objection of the State. The bills are quite lengthy and are qualified by a long statement of the judge to each one. It is unnecessary to quote or state the whole of such explanation. We will merely quote this much of it:

“The testimony shows that the prosecutrix was seduced on the 25th day of June, A. D. 1911, and the writing set out in this bill of exceptions was written not to a third person but to her alleged seducer. The defendant did not offer any testimony from any source as to the general reputation of the prosecutrix for chastity. No witness who testified claimed to have either had or to have witnessed any act of intercourse of prosecutrix with any person other than the defendant. The only attack on her chastity made by defendant consisted in asking her if it was not a fact that she had had intercourse with one Chick Webb, but upon her denial no attempt or offer was made to prove that such was the fact or that there was any foundation for such a question. The court did not believe that the writing served any legitimate purpose and it was no defense and did not tend to support any defense, and had said writing been connected in any way with any testimony that might raise the issue of her chastity at the time the defendant seduced her, the court would have admitted it; but the writing being disconnected and so long subsequent to the date of the seduction, the court was of the opinion that it had no probative force as tending-to show that she was unchaste at the time of her seduction.” (Italics ours.)

We were in error in the original opinion in holding that these documents were admissible in evidence. Under the circumstances of this case we think the action of the trial judge in excluding them was correct. We know of no case that would go to the extent of holding such documents admissible under the circumstances as shown by the record herein.

We, therefore, grant a rehearing in this ease, set aside the former reversal of the judgment, and now affirm it.

Affirmed.

DAVIDSON", Judge.

I can not agree to this affirmance.

HARPER, Judge.

As the promise to marry and the first act of intercourse took place in June, 1911, and the first letter offered in evidence by appellant was not written until in September, 1912, and the others subsequent to that time, I concur in the affirmance of the case.

ON REHEARING.

October 4, 1916.

PRENDERGAST, Presiding Judge.

In his motion for rehearing •appellant presents some of the same questions which were thoroughly ■considered and passed upon in the opinion affirming this case. It is unnecessary to again discuss any of them.

There were some questions raised but not passed upon in the previous opinion. We will now discuss them.

Appellant claims the court erred in not permitting him to ask the ■prosecuting witness, Ella Braun, in substance, if she hadn’t been charged in the Justice Court by complaint some three or four years prior to that time of the theft of a diamond ring, and if as a matter of fact she didn’t steal it and confess to the officers that she had stolen it. We state this briefly. In approving the bill the court qualified it by stating that defendant’s counsel stated that he expected to prove these facts by this witness, “but the court does not know and is unable to certify as a fact that the witness would have testified that she had admitted stealing any ring. The testimony was excluded by the court for the reason that no indictment was presented against the witness, several grand juries having met and adjourned subsequent to the time that such complaint was made against her.” The court’s ruling was correct. Wright v. State, 63 Texas Grim. Kep., 429; Williamson v. State, 74 Texas Grim. Kep., 289, and other cases.

While appellant was on the stand the State asked him over his attorney’s objections if he had one of the baby’s pictures, and he answered that he had. The court subsequently expressly withdrew that testimony from the jury and charged them not to consider it. This would be no such material matter as would justify this court to reverse even if the court had not withdrawn the testimony, hut under the law as well established, as the court withdrew it, it would present no reversible error in any contingency. Miller v. State, 79 Texas Crim. Rep., 9, 185 S. W. Rep., 29, and cases there cited.

In another bill .appellant claims the court erred in not permitting him to answer this question asked by his attorney: “Q. Did you know, or did you hear, of anyone having liad intercourse with the prosecuting witness, Ella Braun?” Upon the State’s objection, the court refused to permit him to answer this question. The court, in approving the bill, qualified and explained it as follows: “That defendant never offered to prove nor did he claim to have ever seen anything improper about the conduct of the prosecutrix or to have had any personal knowledge of any act of intercourse, nor did the court deny the defendant the right to prove by any witnesses he may have been able to produce, any act of intercourse with prosecutrix. On the contrary, the fullest latitude was given to defendant to prove anything by legitimate evidence that might tend to show that prosecutrix was unchaste before he seduced her. The question as framed and asked as to what he had heard would have called for hearsay evidence.” As qualified, this bill shows no error.

The court did not err in refusing "to give two special charges requested by appellant. The court in qualifying each of his bills to the refusal of his charges stated that the testimony did not call for such a charge. The court in a correct charge submitted all the issues raised by the testimony. Appellant made no objection to the court’s charge.

The motion is overruled.

Overruled.

DAVIDSON, Judge.

I can not concur in the disposition of this case. I do not care to write further.  