
    ADAMS v. STATE.
    (No. 5624.)
    (Court of Criminal Appeals of Texas.
    March 3, 1920.)
    1. Criminal law @=>419, 420(4) — Seduction <@=46 — Testimony ,tiiat prosecutrix said SHE WAS ENGAGED TO DEFENDANT NOT CORROBORATIVE, BUT HEARSAY.
    ' In a prosecution for seduction, corroboration of prosecutrix must come from facts and circumstances, independent of her testimony, tending to corroborate it as to the promise of marriage or sexual intimacy, or both, and testimony of a third person that prosecutrix had told her (the third person) that she (prosecu-trix) was engaged -to defendant, prosecutrix having testified that she had so told the witness, was not corroborative of prosecutrix, but inadmissible as hearsay.
    2. Witnesses <@=318 — Testimony not admissible TO SUSTAIN CREDIT OF PROSECUTRIX NOT IMPEACHED.
    ' In a prosecution for seduction, where pros-ecutrix had not been impeached as a witness, but had testified that she had told a third person that she (prosecutrix) was engaged to defendant, testimony of such third person that prosecutrix had so told her was not admissible to sustain prosecutrix’s credit as a witness.
    
      3. Criminal law <§=>404(1) — Child of pasties INADMISSIBLE IN EVIDENCE IN SEDUCTION PROSECUTION.
    Id a prosecution for seduction, the child ,of defendant and prosecutrix cannot properly be introduced in evidence.
    4. Criminal law <§=>719(1) — Remarks of PROSECUTOR ON RESEMBLANCE OF CHILD TO DEFENDANT HELD IMPROPER.
    In a prosecution for seduction, where the child of the parties was not introduced in evidence, th» remarks of private prosecuting counsel about the resemblance of the child to defendant were improper.
    5. Criminal law <§=3720(7) — Argument of PROSECUTOR, CHARACTERIZING AS CORROBORATIVE MATTERS NOT LEGALLY SO, HELD IMPROPER.
    In a prosecution for seduction, statement of private prosecuting counsel in argument that it was said they had not corroborated prose-cutrix, but that she claimed she wrote to defendant for help, and that instead of coming back to marry her, as he had promised, he merely sent her abortive medicine, held improper, in the absence of evidence other than prosecutrix’s as to the correspondence.
    6. Criminal law <§=>721(5) — Argument improper AS INDIRECT REFERENCE TO DEFENDANT’S FAILURE TO TESTIFY.
    In a prosecution for seduction, statement of private prosecuting counsel in argument that prosecutrix had sworn to certain matters, and nobody denied it, held improper, as an indirect reference to defendant’s failure to testify.
    7. Criminal law <§=>1037(2) — Request for SPECIAL CHARGE NOT NECESSARY TO PERMIT OBJECTION TO REFERENCE OF FAILURE TO TESTIFY.
    Where reference is made in argument by prosecuting counsel to defendant’s failure to testify, it is not necessary that defendant request a special charge in order to complain on appeal.
    8. Criminal law <§=>723(1) — Statement by COUNSEL THAT FATHER OF PROSECUTRIX WOULD HAVE BEEN JUSTIFIED IN KILLING DEFENDANT IMPROPER.
    In a prosecution for seduction, argument of private prosecuting counsel, urging as a reason for conviction that prosecutrix’s father and brother had not killed defendant, and that in case of acquittal they would be justified in doing so, held improper.
    Appeal from District Court, Rusk County; D. D. Guinn, Judge.
    Talmadge Adams was convicted of seduction, and appeals.
    Judgment reversed, and cause remanded.
    Robt. T. Jones and J. Y. Gray, both of Henderson, and Black & Smedley, of Austin, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

Appellant was convicted of seduction, and allotted two years in the penitentiary.

The prosecutrix, Florence Parr, testified: That she and appellant became engaged in July, 1916; that he began going with her during that month, and shortly afterward they were engaged, and at his request she had intercourse with him. This condition continued until March, 1917, when, to use her expression, they had a “bust up.” He did not go about her any more for several months. That after the renewed relations he continued to have intercourse with her until September, 1917. .She became pregnant. She testified that appellant was the father of her child. There is no positive evidence of corroboration either as to the act of intercourse or the promise of marriage. There is evidence that he visited her from July, 1916, until March, 1917. There is evidence also that he went with her a few times in July and August, 1917. The father of the girl testified that appellant came to his house to see his daughter, and with the exception of appellant but one. other young man visited his daughter. The mother of prosecutrix was at the trial, but was not placed upon the witness stand. There is testimony of various witnesses that other young men accompanied the prosecutrix on divers and sundry occasions; dates, facts, and circumstances are all mentioned. There is evidence that she had intercourse with other young men, and there is also evidence that her reputation for chastity was bad. These facts came from quite a number of witnesses. As we recall the record there is no evidence sustaining her good reputation for chastity. A great many facts and circumstances are mentioned of her indiscreet conduct with other young men, as was seen by witnesses who testify. The details and numerous facts are not necessary to be stated, we think, in view of the disposition that is made of the ease. The testimony, however, is of a very unsatisfactory nature so far as the girl is concerned, and her testimony and the want of corroboration.

A bill of exceptions recites that on cross-examination of the prosecutrix she was asked if she ever told any one of appellant’s promise to marry her prior to the time the indictment was filed. She replied that she told the witness Mrs. Annie May Parr of such engagement. Mrs. Parr was the only witness that prosecutrix testified to having mentioned her engagement with appellant. She did not inform her mother or father of such relation. Mrs. Parr was called to testify, and did testify, that the prosecutrix told her, some time perhaps in the spring of 1917, that she and appellant were engaged to be married. Objection was urged to the testimony of Mrs. Parr for several reasons. We are of opinion these exceptions should have been sustained. Pros-ecutrix could not corroborate herself by statements to .third parties. Evidence of a third party repeating the statement of pros-ecutrix would not corroborate , her. It would be but a hearsay statement by her. The corroboration must come from facts and circumstances independent of her testimony, and which tend to corroborate her testimony as to the promise of marriage or sexual intercourse, or both. Nor could this evidence be used to sustain her credit as a witness viewed from that standpoint. She had not been impeached. Defendant had elicited from her the fact that she had told Mrs. Parr of the engagement with appellant. Mrs. Parr testified for the state in its original examination of witnesses. No attempt had been made to impeach the witness or to show that she had not made this statement, and in fact no such attempt was made during the trial. If she had not in fact made the statement to Mrs. Parr, appellant, if he saw proper, could have called Mrs. Parr to testify to the fact that prosecutrix had not so informed her, but this was not done, and the state called the witness to sustain the prosecutrix in making out the state’s case. Prom either viewpoint we are of opinion that this testimony was inadmissible. Snodgrass v. State, 31 S. W. 366; Barnard v. State, 48 Tex. Cr. R. 111, 86 S. W. 760, 122 Am. St. Rep. 736; Fine v. State, 45 Tex. Cr. R, 290, 77 S. W. 806. That this evidence was not corroborating evidence,- see-cases already cited, and Bishop v. State, 68 Tex. Cr. R. 559, 151 S. W. 821; James v. State, 72 Tex. Cr. R. 155, 161 S. W. 472, and cases cited in that opinion; Carrens v. State, 77 Ark. 16, 91 S. W. 30; Smith v. State, 58 Tex. Cr. R. 106, 124 S. W. 919, but specially on the inadmissibility of this testimony see Snodgrass v. State, supra.

There was an application for continuance, which is not discussed in view of the fact the judgment is reversed. The absent witness, Hicks, may be obtained upon another trial, and, if not, that question will be presented from a different standpoint.

Exception was reserved to the remarks of private prosecuting counsel. Among other things, this was said:

“They say there is no corroborating evidence in this case to sustain the evidence of Miss Florence Parr. But, gentlemen, I say there is, for you saw the child in the arms of its mother on the witness stand, and I leave it to you if that child does not look just like the defendant, and you tell me that is not corroborating evidence that Talmadge Adams is th.e man who stole the virtue of this poor girl on the promise of marriage. This poor girl says that is Talmadge Adams’ child, and I ask you what person on this earth has denied it?”

There is another bill of exceptions to the argument of private counsel.

He made this statement, in substance:

“But they say we have not corroborated the statement of Miss Florence Parr. But, gentlemen, she says ■ when' she found out that she; was pregnant she wrote to the defendant, who was the author of her ruin under a promise; of marriage, calling upon him for help. And what did he do • This man, who had stolen her virtue under a promise of marriage, I will, tell; you what he did. Instead of coming back to marry her as he promised her that he would, he sent her a lot of medicine to produce an abortion. This poor girl swears that he did this, and nobody has denied it.”

Treating these bills together, it may be stated that the child was not introduced in evidence, and under the authorities could not have been. The girl, it is true, testified that appellant was the father of her child, but, without the child being introduced in evidence, the remarks made by counsel were not proper, as they were based upon a statement to the effect that the child was-before the jury. In regard to the other bill-of exceptions, there is no evidence of the' correspondence to which the girl testified except her own. This did not tend to corroborate under the authorities. If she had produced the letter signed by him, the contents of which were as she testified, this would not be evidence of corroboration, unless there was-other testimony showing that appellant did in fact write the letter. As to both of the statements of private counsel, it may be stated the evidence could not be used for the purpose of corroboration. The argument was erroneous. As to both bills, the expression used that' the girl swore to those matters, and nobody' has'denied it, is an indirect reference, if not almost a direct reference, to the failure of defendant to testify. She placed both matters in such position that nobody but she and defendant knew it if they were facts. There was no attempt to corroborate her on either! proposition, nor was there any attempt to show any evidence of corroboration or that' any existed. She excluded knowledge by oth-' ers of these matters and confined it only to' herself and the appellant. An indirect allusion such as in this case is as fatal as a direct allusion. There are a great many cases that might be cited, but it would seem to be a work of supererogation at this late day to collate them. The court disposes of this matter by stating that appellant did not request a special charge. This is not necessary where reference is made to the failure of the accused to testify, and this by all the authorities. Branch, Orim. Law. § 849, for citation of cases.

There is another bill with reference to the argument of state’s counsel. In discussing the case to the jury he urged as a reason for conviction the fact that the father and brother of prosecutrix had not killed the defendant, and if the jury should acquit they would be justified in taking the life of the accused. This character of argument ought not to be indulged. It is appealing to the prejudices of the jury and the ideas of the citizenship in regard to such matters in a way that is not warranted.

Por the reasons indicated the judgment will he reversed, and the cause remanded. 
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