
    SHARP v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 30, 1910.
    On Motion for Rehearing, Feb. 22, 1911.)
    1. Seduction (§ 50) — Evidence — Instructions.
    Where, on a trial for seduction, two witnesses testified that they had been criminally intimate with prosecutrix on several occasions prior to the intercourse between accused and prosecutrix, the refusal to charge that though prosecutrix yielded to accused under a promise of marriage, yet if before the promise of marriage, she had had criminal intercourse with other persons, accused must be acquitted, was reversible error.
    [Ed. Note. — Eor other cases, see Seduction, Cent. Dig. §§ 89-92; Dec. Dig. § 50.]
    On Motion for Rehearing.
    2. Criminal Law (§ 1141) — Appeal —Instructions.
    Where the trial court testified positively that he gave a charge that was lost, and not copied in the transcript, and one or two witnesses corroborated him, and the foreman of the jury testified that he had no recollection of the giving of such a charge, the court on appeal would assume that the charge had been given so that the conviction would not be set aside on the ground that the charge had not been given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3032; Dec. Dig. § 1144.]
    3. Criminal Law (§ 594) — Continuance — Grounds — Absence oe Witnesses.
    Refusal to grant a first continuance on the ground of the absence of a witness who would testify to a material fact in defense was erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.]
    4. Criminal Law (§ 695) — Evidence — Admissibility.
    It is not error to permit proof of the reputation of witnesses at the time of the trial as against an objection going only to the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. § 695.]
    Appeal from District Court, Delta County; R. L. Porter, Judge.
    Scott Sharp was convicted of crime, and lie appeals.
    Reversed and remanded.
    Patteson & Patteson, Lennox & Lennox, and Moore & Park, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other -.ases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   McCORD, J.

Appellant was convicted of seduction, and awarded a term of five years’ confinement in the penitentiary. Numerous questions are presented in the record, but as they are not likely to occur upon another trial, it is unnecessary to mention them.

In the trial of the case two witnesses testified, to wit, Sam Sinclair and Rich Akard, that each had intercourse with prosecutrix on several occasions, and at a time anterior to the intercourse between the defendant and prosecutrix. The court in its charge to the jury omitted to instruct them upon this Issue, but simply directed the jury that if they believed that the prosecutrix was under 25 years of age, and defendant had intercourse with her, and the same was under a promise of marriage, and she yielded her virtue in consideration of that promise, he would be guilty of the offense. The court instructed the jury that “seduction” 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 nowhere in the charge did he instruct the jury that if at the time she had intercourse with the defendant under a promise of marriage she was an unchaste woman, and had surrendered her person to other men, the defendant could not be guilty. „ Appellant requested the court to charge the jury that' though they might- believe that prosecutrix yielded to the defendant under a promise of marriage and that he had intercourse with her, yet if they believe from the evidence that before such promise of marriage, if any, the prosecutrix had had carnal intercourse, with some other person or.persons, then it' would be their duty to acquit. This charge was refused. The facts of the case call for such a charge, and it was error for the court to fail to thus instruct the jury, for if she was not a chaste woman and had before that time had intercourse with other men, she would not be the subject of “seduction” as that term is known to the law. See Vantrees v. State, 128 S. W. 383.

For the error indicated, the judgment is reversed and the cause is remanded.

On Motion for Rehearing.

HARPER, J.

At a former day of this term the court reversed and remanded this cause, the opinion being by Judge McOORD, on the ground that appellant requested the court to charge the jury that though they might believe that prosecutrix yielded to defendant under a promise of marriage, if the prosecutrix had had carnal intercourse with some other person or persons, then it would be their duty to acquit, and the court had refused said special charge.

The state filed a motion for a rehearing, alleging that defendant had requested two special instructions on that phase of the case, and the court had given charge No. 3 requested by defendant, but same had been' lost and not copied in the transcript. The charge alleged to have been given fully covers the point on which the case was reversed, and upon a hearing, the court trying the cause, substituted the charge. The trial court testifies he gave the charge as substituted, in substance, at defendant’s request, as do one or two other witnesses. The foreman of the jury testifies be has no recollection of such charge having been given. If this was the only error complained of in the case, we would have no hesitancy in granting the motion for rehearing and affirming the case, as the recollection of the trial judge is clear about the matter, but in the record we find defendant’s first application for a continuance. It appears that defendant was indicted on June 9th and was arrested on June 10th, and his case called for trial on June 14th, the fourth day after he was arrested. On June 14th he filed an application for continuance on account of the absence of the' witness John Tarply, whose home is alleged to be in Delta county, but who was temporarily in Oklahoma. Appellant states that he was arrested on the 10th day of June; “that on the 11th day of June, 1910, he applied for and caused to be issued a subpoena for his witnesses, among others for the witness John Tarply; that said subpoena, with the return of the officer thereon, is here referred to and made a part of this application; that by the said return the said witness, John Tarply, was not served, the return as to him stating that he is out of the county. Applicant stated that for many years the said witness has resided in Delta county, and that until a few days ago applicant still believed that he was in said county, but was informed for the first time about two or three days ago that he was somewhere in the state of Oklahoma, the exact location he did not learn; that he has not been able to ascertain definitely the location of said witness, so as to apply for a commission to take the deposition of the said witness. Applicant states that as soon as the indictment was returned he began to prepare for his defense, and has used due diligence to secure the attendance of his witnesses, and has used due diligence to locate the said witness. Applicant stated that he expects to prove by said witness that prior to October 1 and October 10, 1909, that the said John Tarply had carnal, intercourse with the prosecuting witness, Maud West; that he is informed, and so states, that Maud West will testify that she and defendant became engaged to marry each other about the 1st day of October, A. D. 1909, and that defendant by virtue of his promise of marriage, had carnal intercourse with her on the 10th day of October, A. D. 1909.” The application contained the other allegations essential to. a motion for a first continuance. If the witness would testify to the fact alleged, and the jury believe him, this would be a defense to the charge contained in the indictment, and we think the court erred in not granting the application under the facts in this case. Kelly v. State, 33 Tex. Cr. R. 31, 24 S. W. 295; De Warren v. State, 29 Tex. 464; Hyden v. State, 31 Tex. Cr. R. 401, 20 S. W. 764; McAdams v. State, 24 Tex. App. 86, 5 S. W. 826; Perez v. State, 48 Tex. Cr. R. 225, 87 S. W. 350.

The court did not err in overruling the motion to quash the indictment, and we do not think there was any error in permitting the reputation of the witnesses at the time of the trial to be proven; the facts relied on to exclude this testimony might go to its weight, but not to its admissibility.

Eor the error pointed out, the motion for rehearing is overruled.  