
    DUNLAP v. STATE.
    (No. 8642.)
    (Court of Criminal Appeals of Texas.
    April 22, 1925.
    Rehearing Denied Oct. 7, 1925.)
    I.Seduction <§=37 — Indictment for “seduction” does not have to. allege prior chaste character of prosfecutrix.
    .In an indictment for “seduction” under Pen. Code 1925, art. 505, defined in Vernon’s Ann. Pen. Code 1916, art. 1448, as to be used in sense in. which it is commonly understood, it is not necessary to allege the previous chaste ehar-acter of prosecutrix, where statute does not require it.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Seduce— Seduction.]
    2. Criminal law <&wkey;59¿(6) — Continuance properly refuse’d, where want of due diligence shown.
    Request for a continuance for want of testimony of a witness was properly refused, where evidence showed a period of 51 days intervening between arrest of accused and obtaining of process for witness, in addition to other grounds showing want of diligence.
    3. Seduction <&wkey;4&wkey;Permitting prosecutrix to testify that her conduct with defendant was in reliance on promise of marriage not error.
    In a prosecution for seduction, permitting prosecutrix to testify that no man besides defendant had carnal knowledge of her prior to date of offense, and that she would not have submitted to such conduct had she not relied on his promise of marriage, was not error.
    4. Criminal law <©=693 — Admission of letters not error, whore objection to execution not made until special charge.
    Admission of letters of defendant was not error where objection that there was no proof of execution was not made until the special charge and on motion for new trial.
    <£=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal,.from District Court, Hill County; Horton B. Porter, Judge.
    Walter Dunlap was convicted of seduction, and he appeals.
    Affirmed.
    J. D. Burns, of Hillsboro, T. P. Scott, of Waco, and Smith & Clarke, of Hillsboro, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

Appellant, Walter Dunlap, was indicted, tried, and convicted in the district court of Hill county for the offens'e of seduction, and his punishment assessed at two years’ confinement in the penitentiary.

Appellant’s attorneys in this case have filed a very extensive 'and exhaustive brief, the greater portion of which is devoted to the attacking of the indictment because it fails to allege that the prosecutrix was of chaste character prior to the date of the alleged offense, and also in' other forms bring into question the same issue.

The indictment follows the statute, and alleges that the defendant—

“did then and there unlawfully, under and by virtue of a promise of marriage made by him to Molley Motley, who was then and there under the age of 25 years, seduce and have carnal knowledge of such female,” etc.

The Legislature, having in mind evidently that such a question might be raised as con tended for by the appellant in this case, and , in order to avoid 'any confusion over such matters, tools the precaution to define what was meant by “seduction” in passing article 1448, Vernon’s P. C., which is as follows:

“The term ‘seduction’ is used in the sense in which it is commonly understood.”

In the case of Slaughter v. State, 86 Tex. Cr. R. 527, 218 S. W. 767, Presiding Judge Morrow, in a very extensive opinion, citing many authorities in and out of this state, in the writer’s opinion covers the complaint made in the instant case, and in the case supra cites an Oklahoma case, in which the statute of that state is like ours, and quotes this language:

“Now, there are hut two things thát he is charged with doing, namely, promising to marry the prosecutrix, and having illicit connection with her. The other two elements of the offense go to the character of the. person protected by the law, namely, an unmarried female, and one óf chaste character. * * * Hence, we think the purpose of the statute is to require the prosecutrix to be corroborated on the promise of marriage and the illicit intercourse, and not upon the elements that go alone to her characteristics,” — citing Harvey v. Terr., 11 Okl. 156, 65 P. 837, and also cites a Mississippi ease (Ferguson v. State, 71 Miss. 805, 15 So. 66, 42 Am. St. Rep. 492) as follows:
“When she is supported as to the promise of marriage and the act of sexual intercourse — the two great fundamental essentials — the corroboration, we think, will be sufficient.”

We are of .the opinion that the Slaughter Case, supra, is.an authority against the contention of the appellant in this instance, and settles the contention against him with reference to the sufficiency .of the corroboration of the evidence in the instant case.

Appellant complains of the action of the .court in overruling his motion for continuance, which is in the usual form for a first application, seeking a continuance for the want of the testimony, of Mrs. Cornell. The state controverted the diligence and contested said motion, and in said contest alleged that it was not the first application for continuance but was the second application ; and the court, after hearing the motion and the contest on same, in overruling said application, found against the defendant, and we are not prepared to say that same was error from the record before us. The contest shows that there was a period of about 51 days from the arrest of the defendant -until th'e process for said witness was obtained, in addition to other grounds showing a,want of diligence. We hold,that there was no error in the court’s action in this particular.

Appellant complains of the court’s action in permitting the prosecutrix to testify that she would not have permitted the defendant to hug and kiss her and in permitting her to testify that no man besides the defendant had carnal knowledge of her prior to the date of the offense, and that she would not have submitted to such conduct had she not relied on his promise of marriage. We think there was no error in the court’s action in this particular.

There is also complaint upon his part to the court’s admitting in evidence letters which the prosecutrix testified she had received from the appellant, of a very endearing nature, and which one of the state’s witnesses also testified to having read, upon the ground that there was no proof of the execution of said letters as a basis for said testimony. The court, in qualifying and explaining these bills, states that there was no such objection raised to this testimony until it was called to his attention by a special charge and in the motion for new trial. In view o'f said explanation, there was no error in the admission of said testimony. The defendant did not testify in the case, and doubtless, if this question had been raised at the time the evidence was admitted, the court would have required proof as to the author of same before admitting them.

We have not seen fit to discuss all of the bills in the record-, but we have carefully considered same, and, after a careful consideration of the entire record, we fail to see any error in the trial of said case, and believe that the defendant has had a fair and impartial trial, and that the judgment, of the lower court should be and is hereby, affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant with much vigor renews his attack upon the indictment asserting its invalidity for failure to allege the “previous chaste character” of the injured female.

An exhaustive review of the authorities from many states discloses some lack of harmony upon the point, at the same time revealing that in most instances the conflict is apparent rather than real.

Where by statute the offense of seduction is described as one against a female of “previous chaste character,” it is generally held that such element is descriptive of the offense, and that the indictment must contain an averment of such fact. State v. Kelly, 245 Mo. 489, 150 S. W. 1057, 43 L. R. A. (N. S.) 476. See People v. Roderigas, 49 Cal. 9; People v. Krusick, 93 Cal. 74, 28 P. 794; State v. Timmens, 4 Minn. 325 (Gil. 241); State v. De Witt, 186 Mo. 61, 84 S. W. 956; People v. Weinstock (Mag. Ct.) 140 N. Y. S. 453. Where by statute the offense is defined to be against a female “of good repute,” it is held essential that the indictment contain an averment of the female’s good reputation. State v. Hill, 91 Mo. 423, 4 S. W. 121; Oliver v. Commonwealth, 101 Pa. 215, 47 Am. Rep. 704; Zabriskie v. State, 43 N. J. Law, 640, 39 Am. Rep. 610; Hay v. State, 178 Ind. 478, 98 N. E. 712.

Our own statute (article 505, P. C. Revision 1925, formerly article 1447, P. C.) provides that, “if any person by promise -to marry shall seduce an unmarried female under the age of twenty-five years and shall have carnal knowledge of such female, he shall he” punished, etc. It will he observed that neither “previous chaste character” nor “former good repute” enter into the definition of the offense by statutory provision. Under statutes similar to ours in this respect, it has been held unnecessary to allege in the indictment that the female was of previous chaste character. Caldwell v. State, 73 Ark. 139, 83 S. W. 929, 108 Am. St. Rep. 28; Kerr v. U. S., 7 Ind. T. 486, 104 S. W. 809; People v. Brewer, 27 Mich, 134; Ferguson v. State, 71 Miss. 805, 15 So. 66, 42 Am. St. Rep. 492; Andre v. State, 5 Iowa, 389, 68 Am. Dec. 708; State v. Hemm, 82 Iowa, 609, 48 N. W. 971; Wilson v. State, 73 Ala. 527; State v. Turner, 82 S. C. 278, 64 S. E. 424, 17 Ann. Cas. 88.

Under State v. Kelly, reported in 43 L. R. A. (N. S.) 476, will be found an exhaustive note covering many pages, dealing with the subject under consideration, with voluminous reference to authorities. To review them would be tedious and .unprofitable. Examination of them, we think, will reveal the conclusions stated by us to be correct as touching the state of the decisions in the various jurisdictions.

We are confirmed in the opinion that under our own statute defining seduction the pleader is not called upon to allege in the indictment charging such offense that the female was of previous chaste character.

The motion for rehearing is overruled.  