
    COLE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied May 14, 1913.)
    1. CRIMINAL Law (§ 598) — Continuance — Absence oe Witnesses — Diligence.
    One who relies on his sister’s word that she will attend court does not use due diligence to procure her attendance essential to justify a continuance on the‘ground of her absence.
    [Ed. Note. — For > other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; D'ee. Dig. § 598.]
    2. Criminal Law (§ 596) — Continuance-Absence of Witnesses — Impeaching Testimony.
    It is not error to refuse a continuance on the ground of the absence of a witness whose testimony is impeaching.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    3. Criminal Law (§ 683) — Reception of Evidence — Rebuttal—Admissibility.
    Where accused, on trial for seduction, showed, on the cross-examination of prosecutrix, that he had paid expenses incurred by her going away and having a child, the state could show that he had not paid all the expenses but that her father had paid part of them.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1615-1617; Dec. Dig. § 683.]
    4. Criminal Law (§ 1169) — Harmless Error —Evidence—Admissibility.
    Where the sole defense of accused, charged with seduction, was that there was no engagement of marriage, the admission of evidence as to when and where the father of prosecutrix learned of her pregnancy was not prejudicial to accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dee. Dig. § 1169.]
    5.Seduction (§ 40) — Evidence—Admissibility. ■’
    On a trial for seduction, it was immaterial whether accused was present in a physician’s office when the money was given to prosecutrix to leave the county and go to a distant city; the payment being done with his knowledge, consent, and acquiescence.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dee. Dig. § 40.]
    6.Criminal Law (§ 511) — Testimony of Accomplice — Corroboration — Circumstantial Evidence.
    The testimony of an accomplice may be corroborated by circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. 511.]
    7. Criminal Law (§ 823) — Instructions — Accomplice’s Testimony.
    An instruction that prosecutrix, on a trial for seduction, is an accomplice and that accused cannot be convicted on her testimony alone unless there is other evidence tending to connect accused with the offense, is not erroneous for failing to charge on reasonable doubt covered by an instruction following.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    8. Criminal Law (§ 1144) — Appeal — Review— Instructions — Presumptions.
    Where a special charge is not marked “given” or “refused” and the bill of exceptions does not complain of its'refusal, the court on appeal will presume that it was given.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    9. Criminal Law (§ 829) — Instructions — Requests — Sufficiency of Instructions Given — “Seduction.”
    Where, on a trial for seduction, the only defense was that prosecutrix did not submit by reason of a promise of marriage, an instruction that seduction means to lead an unmarried female away from the path of virtue, and the promise of marriage by the man, and the yielding of her virtue in consideration thereof, constitute the gist of the offense, and that the offense is not complete until the female has been seduced, sufficiently charges that .there can be no seduction unless prosecutrix yielded her virtue alone on consideration of promise of marriage, and it was not error to refuse a requested charge on the subject.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.
    
    For other definitions, see Words and Phrases, vol. 7, pp. 6389-6393.]
    10. Criminal Law (§§ 687, 1153) — Trial-Reopening Case for Admission of Testimony-Discretion of Court.
    Whether a case shall be reopened after the testimony has closed is within the sound discretion of the court, and its action will not be disturbed unless the discretion has been abused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1621, 1622,1625, 3061-3066; Dee. Dig. §§ 687, 1153.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Charles Cole was convicted of crime, and he appeals.
    Affirmed.
    Ei Q. Murphree, of Waco, and Eidson & Eidson, of Hamilton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of the offense of seducing Anna Belle Bullington and Ms punishment assessed at two years’ confinement in the penitentiary.

That appellant had carnal intercourse with the prosecuting. witness is not denied; he testifying himself to several acts of intercourse. He, however, denies that he was engaged to marry the prosecutrix, and that she yielded her virtue to him in consideration of said promise. The prosecutrix by her testimony makes a case of seduction, and she is corroborated sufficiently by John Wright both as to the promise of marriage and intercourse and other circumstances to sustain the verdict.

There was no error, in overruling the motion to continue the case. Appellant was indicted and arrested in March, 1912. The ca'se was not tried until the following September. If he relied on his sister’s word that she would attend court, this would not be diligence in law. In addition to this, the testimony he stated he expected to prove by her would he impeaching in its nature, and this would be such testimony that we would not be authorized to hold the court erred in refusing to continue the case. • .

On cross-examination of the prosecutrix defendant proved by her that he and his brother had given her $278 to go to Ft. Worth and give birth to her child, and thus seek to conceal her shame, and in consideration of the money being furnished she had agreed to release him from all obligation to her. On redirect examination the state was allowed to show that defendant did not pay all the expense, but her father paid part of it. Under the circumstances, this was not such error as would call for a reversal of the case. Appellant was seeking to elicit the sympathy of the jury by showing that he had paid all these expenses, for this would be no defense to a prosecution for the offense, if committed, and, if he did not do so, it was permissible to so show. He seemed to succeed, however, for the jury gave him the lowest penalty authorized by law.

As to who informed J. D. Bullington of the condition of his daughter, and when he was so informed, would be immaterial in the condition of this record. Appellant does not deny that he had intercourse with the daughter, that she gave birth to a child; his sole contention being that it was under such circumstances as would not constitute seduction, therefore when and where the prosecutrix’s father learned of her condition could not injuriously affect appellant. The court, at the time witness testified he was informed by Dr. Boyer, verbally instructed the jury not to consider any statement of Dr. Boyer, unless the evidence would show that he was acting under the instructions and at the instance of defendant. Defendant objected to the court verbally instructing the jury. In approving the bill the court states: “(1) I thought then and now that what I said to the jury was in his (defendant’s) behalf and for his benefit, and was intended by me as a precaution for the proper protection of his rights before the jury. (2) The evidence of the defense as well as that of the state clearly shows that Dr. Boyer was the ‘go-between’ of prosecutrix and the defendant, and that he had been selected by them to conduct the negotiation going on between the prosecutrix and her father, and the defendant. (3) However, I left the question of Boyer’s authority to act for defendant to the jury in the instruction I gave to them in question.” As thus qualified, the bill presents no error.

It would have been immaterial whether or not appellant was present in Dr. Boyer’s office when the money was given to the prosecutrix to leave the county and go to Ft. Worth. It was being done with his knowledge, consent, and acquiescence, and he was furnishing the money; therefore the testimony he had to be persuaded by his brother to go would not be material to any issue in the ease.

The court instructed the jury: “You are instructed that under the law the witness Anna Belle Bullington is an accomplice; now you cannot convict the defendant upon her testimony alone, unless you first believe her testimony is true and that it shows the defendant is guilty of the offense charged in the indictment, and even then you cannot convict the defendant upon said testimony alone unless you further believe that there is other evidence tending to connect the defendant with the offense charged. In this connection, you are instructed that corroborative evidence need not be direct and positive independent of the testimony of Anna Belle Bul-lington, but proof of such facts and circumstances as tend to support her testimony, and which satisfy the jury that she is worthy of credit as to the facts essential to constitute the offense of seduction as herein before defined to you and which tend to connect the defendant with the commission of the offense charged, will fulfill the requirement of the law.” Defendant objects to that portion of the charge wherein the court instructs the jury that the accomplice may be corroborated by circumstantial evidence. We think this a correct rule, and any fact that may be proven in a case by positive testimony can also be proven by circumstantial evidence, if of sufficient probative force. In this case the witness was corroborated both as to the promise of marriage and intercourse by positive testimony. Nor was it necessary to in this paragraph instruct the jury in regard to reasonable doubt, for in the very next paragraph the court applied the doctrine of reasonable doubt to the whole case, instructing the jury: “The defendant in a criminal case is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and in this case if you have a reasonable doubt of the defendant’s guilt you will acquit him and say by your verdict not guilty.”

There are two special charges contained in the record, but they are neither marked “given” nor “refused,” and we are wholly unable to determine whether or not they were given, except as to charge No. 2. In a bill of exception it is shown this charge was refused, and, as no bill was reserved to the other, we must presume that it was given. This second charge we think sufficiently covered by the main charge under the facts in this ease. The intercourse was admitted by the defendant So the sole issue left for determination was: Did she submit by reason of his promise of marriage and seductive conduct? The court instructed the jury: “You are instructed that ‘seduction’ as used in the statute means to lead an unmarried female under the age of 25 years away from the path of virtue; to entice or persuade her by means of a promise of marriage, to surrender her chastity, and have carnal intercourse with the man making the promise. The promise of marriage by the man, and the yielding of her virtue in consideration of that promise, constitute the gist of the offense, and the evidence must show beyond a reasonable doubt that the female yielded her virtue alone upon the consideration of the promise to marry her made by the man to whom she does so yield. The offense is not complete until the female has been seduced, that is corrupted, deceived, drawn aside from the path of virtue which she was pursuing.” It is thus seen the court instructed the jury there could be “no seduction unless she yielded her . virtue alone upon consideration of a promise of marriage.”

As to whether a case will be reopened after the testimony has closed is a matter within the sound discretion of the court, and under the facts in this case we cannot say he abused his discretion in deciding not to permit the ease to be opened the morning after the testimony had closed. Nor could the testimony have been conducive to any different result if all the testimony admissible on the issue sought to be injected into the case had been adduced.

The judgment is affirmed.  