Bronikowski v. State , 100 Tex. Crim. 600 ( 1925 )

In a forcible motion for rehearing appellant insists that the court erred in overruling the application for continuance because of the absence of the sister of appellant. It is urged that her testimony, as stated in the application, went beyond the matters discussed by us in our opinion. Appellant claims that had she been present and testified, as stated in the application, "that the defendant had never gone with or visited the prosecutrix prior to that time", the time referred to being the night on which appellant admitted having intercourse with prosecutrix, — that this would have been very material to his defense. We regret that we cannot agree with counsel in regard to this matter. Such a statement in the application for continuance appears to us to be but a conclusion and an opinion which the witness would not be warranted in expressing on the witness stand, and which, if allowed, would have but little weight. Slight reflection would convince one that for appellant's sister to undertake to say that he had never gone with or visited the prosecutrix prior to a certain date, would manifestly be beyond her power to truthfully state. He was a man and she was a woman. He went his way and she hers, and for her to undertake to say that he never went to a certain place or with a certain person, would ordinarily be deemed beyond her ability and be but an opinion, the weight of which would depend upon such facts as she might state. We do not believe the case should have been continued in order to allow said witness to state such opinion.

Appellant again urges that this is not a case of seduction because there appears in the testimony of prosecutrix some statements which to the mind of appellant support the conclusion that the carnal intercourse was had under circumstances which partook of the nature of barter and exchange and not of the yielding by a chaste woman of her person to her lover relying upon his promise to marry. It must be borne in mind that prosecutrix was a Polish girl testifying through an interpreter and that her expressions of her motives, feelings and purposes could not be put with that clarity and distinctness which otherwise might have appeared. The matter referred to appears in questions propounded to her as to what she said upon the examining trial and which she admitted she then stated. The naked statement that she allowed appellant to have intercourse with her upon his promise to marry, if disconnected from other parts of the testimony and other expressions used by the witness throughout, might furnish some basis for appellant's contention; but looking to this unfortunate girl's testimony as a whole and at practically all of her other statements made while on the witness stand, in this case, it appears manifest to our minds that the evidence does not so make out a case of barter and sale as to justify the conclusion that such was the dependence of prosecutrix in allowing the carnal act.

Being unable to agree with the contentions made by appellant, the motion for rehearing will be overruled.

Overruled.