
    WOOD v. STATE.
    (No. 7470.)
    (Court of Criminal Appeals of Texas.
    March 21, 1923.)
    .Seduction <&wkey;50(3) — Special charge as to chastity and promise of marriage held improperly refused.
    In a prosecution for seduction, where there was testimony that, prior to her relations with defendant prosecuting witness had submitted to the caresses of other male companions, which reflected' on her chastity, and that, it was not •the promise of marriage alone that she had in mind when she submitted to the act; it was error to refuse a special- charge that, if defendant promised to marry her, and that she .submitted to his embraces while she was chaste and relying on his unconditional promise to marry her, and even though the jury might believe that the defendant had carnal intercourse with her, and he promised to marry her, yet if at the time of the intercourse she was actuated by lust or any such consideration or motive, or if the promise of marriage was conditional.on pregnancy, or if the jury had a reasonable doubt that she may have been actuated by any such motive, to find defendant not guilty.
    • Appeal from District Court, Kimble County ; J. H. McLean, Judge.
    William Wood was convicted of seduction, and he appeals.
    Reversed and remanded.
    Weaver H. Baker and M. E. Blackburn, both of Junction,, for appellant. . -
    R. G. Storey, Asst'. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for seduction; punishment fixed at confinement in the penitentiary for a period of 2 years.

The prosecutrix began keeping company with the appellant in February, 1920. She was 17 years of age, and appellant was 36 years old. She became engaged to him about the 1st of September, 1920. At that time she was staying at ' the home of her brother. Appellant visited her often after that timé. She remained there until April of the following year. The sexual intercourse took place in October. The prosecutrix testified that—

“William Wood just told me at this time that, if I would have sexual intercourse with him, he would marry, me.”

This was about a month after the engagement. He had previously, about the 1st of October, asked her to have intercourse with him. On cross-examination she testified that it was some time after they became engaged before she submitted to sexual intercourse, but in the meantime the appellant had fondled her person. She said that at the time the act of intercourse occurred marriage was not the only thing that was on her mind.

One of the witnesses on behalf of the a»P-■pellant testified that in the spring of the year 1921 he was with the prosecutrix at night two or three times; that he hugged and kissed her and felt her breast'; that she invited him to come back to see her. Another young man testified that during the spring of 1920 he was also with the prosecutrix on two nights; that he fondled her, hugged and kissed her, and felt her breast and legs.

Appellant' denied the promise of marriage and the act of intercourse. The evidence showed that' subsequent to the time of the ¿lleged offense both appellant and prosecutrix had married other persons.

■ Appellant requested a special charge appropriately drawn with the view of calling ■upon the! jury' to determine whether or not appellant had had carnal knowledge of the prosecutrix while she was chaste, and whether her reliance in submitting to his embrace's was wholly upon an unconditional promise Of marriage. The charge is a replica of one that was before the court In the case of Coleman v. State, 71 Tex. Cr. R. 20, 158 S. W. 1139, and the facts, so. far as they raised the legal question, are not different from those in the instant case. In that case, as in this one, there was testimony of a positive nature to the effect that, prior to her alleged relations with the appellant, she had submitted to the fondling of her person and caresses of other male companions! which reflected upon her chastity. She denied these, but the truth of the testimony was for the jury; The evidence of the prosecutrix that it was not the promise of marriage alone that she had in mind at the time she submitted to the act of sexual intercourse, in connection with the other testimony to which we have adverted, was such as rendered it incumbent upon the court to submit to the jury the issues embraced in the special charge mentioned.

Not being covered by the main charge, the Assistant Attorney General concedes that the error of the court in refusing the special charge was harmful, and should result in a reversal of the judgment. With this view we concur.

The judgment is reversed, and the cause remanded. 
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