Nash v. State , 61 Tex. Crim. 259 ( 1911 )

It is urgently insisted by the Assistant Attorney-General, joined by Mr. Lattimore, the district attorney of the judicial district from which this appeal comes, in a motion for rehearing filed by the State, that this court is in error in reversing the judgment of the lower court. After a careful review of the record I can not agree with the views urged in the motion. To affirm the judgment would be to hold that no corroboration is necessary in a seduction case, thereby usurping the power of the law-making department of the State and overthrowing and destroying a plainly written statute. This I can not do and ought not to undertake. The following language occurs in the written argument for the State, to wit: "If the opinion of the majority of this court stands as rendered in this case, it will undoubtedly undermine and sap the strength of the law which was designed and intended to safeguard the home and its dearest and most important interest."

This to our minds, when construed in the light of the statute defining seduction and the one fixing the status as to the evidence of the alleged seduced female, is not only quite remarkable, but is fully an astounding proposition. This court had nothing to do with framing the definition of the offense, or fixing the character or quantum of evidence necessary to convict. This is a legislative question as much so as is the defining of any or every other offense and the annexing of penalties. This statute only proposes to punish for the seduction of an unmarried female under the age of twenty-five years. It does not provide, nor intimate a punishment of any female above the age of twenty-five years, married or unmarried, although she might be a constituent member of the family and as much entitled to the protection and safeguards thrown around the home as is a woman under twenty-five years of age. It does not protect the married woman, although she be under twenty-five years of age. Nor does it undertake to throw any safeguard around the home as such, either as to its dearest or its most important interest. Nor do we understand that by following the plain letter of this legislative enactment that this court will be destroying the safeguards of homes and their most important interest, nor would we thereby undermine or sap the foundations of society. To usurp legislative authority would be far more detrimental in the direction of undermining and sapping the strength of the law and in the destruction of the safeguards of the home and their dearest interest. This law of seduction, like every other statute defining a public wrong, is for the protection of society and not so much for the protection of the individual, and we could with as much propriety be called upon to change, enlarge, or modify the law of murder, rape, arson, burglary, robbery, etc., so as to punish, whether or no, a person charged with one of those offenses. To do so would give to this court the legislative power which it does not and can not, under the Constitution of this State, possess and it would destroy every vestige of safeguard which the law and Constitution throws around a person charged with crime.

While it is our duty to protect society in the manner pointed out by law, yet our duty is equally as plain and urgent to protect one charged with crime against an unfair and illegal trial or a wrongful verdict. He is as much entitled to have his rights safeguarded and fully protected by this court, whenever called upon to do so, as it is our duty to protect every other member of society. This constitutes the certainty which is said to be the glory of the law. The criminal laws of this State are not laws of vengeance, and were not made either to assist in individual revenge or to encourage sympathy in behalf of the person injured. If the individual has been injured in person or property, he or his representatives can find remedy under laws and statutes affecting private rights and remedies. The Constitution of this State has carefully provided for keeping separate the three departments of government — executive, legislative and judicial. This is done, not only in behalf of individual liberty, but to insure the constitutional permanency of our State and form of government. Whenever the time may come when this provision of the Constitution can be disregarded, the Constitution with this wise provision will become a dead letter.

While this provision of the Constitution is made for the protection of both individual rights and the rights of the State, every article of the Bill of Rights is made for the protection of the individual against aggression by the State in the exercise of unlawful powers by any of its departments. We are not willing to give to any law a different construction from that which its context, words, subject matter and spirit shows to have been the legislative intention in framing it, for the purpose of enforcing the conviction of a man upon trial simply because some unfortunate victim may excite our sympathy. Penal Code, arts. 1, 3 and 9; White's Ann. P.C., secs. 4, 5 and 6, for collated cases.

The protection of individual liberty is the duty of courts, and not until some act done by him contrary to the penal law for which he is being tried, and shown by legal evidence to be guilty, can he lawfully be deprived of such liberty by the infliction of such penalty.

While everyone should sympathize with an unfortunate girl who may be the victim of someone's lust, such sympathy can not be had at the expense of plain judicial duty to such an extent as to cause us to place a construction upon a statute, neither intended, nor provided by the law-making power.

The statute of seduction has been construed too often by this court to warrant us in giving it a construction other than that heretofore given it. The court would certainly be, if not already there, upon dangerous grounds if a different construction as to well settled law has to be given every time a case comes before the court to meet some particular exigency. I fear that we have been drifting rather a long way and that it may be necessary to take our bearings occasionally and may be to call a halt.

Seduction is defined as follows: "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 be punished by imprisonment in the penitentiary not less than two nor more than ten years. Article 967, Penal Code.

It follows from this definition that five material facts are necessary to be proved by the State in order to secure a conviction and the failure to prove any one of these must result in an acquittal.

First. The woman alleged to have been seduced must have been at the time of the carnal act unmarried. Mesa v. State, 17 Texas Crim. App., 395. Otherwise she can not be the subject of seduction under a promise of marriage. Same case. See also Ferguson v. State, 71 Miss. 805; State v. Reed, 153 Mo., 451; Norton v. State, 72 Miss. 128.

Second. She must have been, at such time, under twenty-five years of age. This is as material and as absolutely important as the age of females in cases of rape, where conviction is sought in the absence of force upon a female under fifteen years of age.

Third. She must have been chaste, but morally corrupted, by the acts or words of the party alleged to have seduced her to the extent that she would have a less regard for her duty as to the virtue of chastity, than she would have had, but for the blandishments and wiles resorted to by him. However, as the law presumes every woman to be chaste, the prosecution is not required to prove her chastity. The want of chastity is a defensive matter which may be shown in defense of the accusation. The very fact of the law indulging in this presumption of chastity and the further fact that everyone charged with crime is presumed innocent until the contrary is shown, the burden is placed upon the State to prove that she has been seduced, that is, morally corrupted, by the acts or words or conduct of the person accused to that extent that she would have a less regard for her duty as a chaste and virtuous woman than she would otherwise have had. Putman v. State, 29 Texas Crim. App., 454; Brewer v. People, 27 Mich. 134; State v. Wenz, 41 Minn. 196. "The term seduction is used in the sense in which it is commonly understood." Art. 968, Penal Code.

It will be seen, therefore, that the Legislature did not attempt to give to the word "seduction" a meaning other than is given to it by common understanding, or as the statute says, as it is commonly understood, but having used it in connection with the words "carnal knowledge" and as one of the constituents of the offense, due regard and consideration, as intended by the Legislature, must be given to it and proof of this fact can be no more dispensed with than can the act of carnal knowledge, or the other constituent elements of the offense.

Fourth. She must have had carnal intercourse with the person accused of the offense. This must be the effect and result of his seductive influences and preceded by promise on his part to marry her, and she must yield her consent to the carnal knowledge from this promise of marriage alone and from no other cause or reason. This is a positive requirement of the law. Barnes v. State,37 Tex. Crim. 320, 39 S.W. 648.

Fifth. There must be a promise of marriage to her by the party accused, and, as before said, this must precede the act of carnal knowledge, and must not only induce the act, but be the exclusive reason of her consent to the act. Barnes v. State, supra, and cases there cited.

The proof of these five facts are necessary and absolutely essential to establish the corpus delicti; in other words, to make a complete offense, such as is defined by law. These constitute what our statute calls the "offense charged."

While the Legislature in its wisdom has permitted the injured female to testify, it has restricted the extent of her testimony to the extent that no conviction can be had alone upon such testimony. "In prosecutions for seduction, under the provisions of the Penal Code, the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon the testimony of the said female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged." This language is found in art. 769, Code Crim. Proc.

The effect of this statute is to require that the female be corroborated by testimony other than her own tending, not only to identify the defendant as the guilty party, but also as to the commission of the "offense charged." In cases of seduction one includes the other and the testimony which goes to make the offense must necessarily, at the same time, identify the guilty party if such testimony be true. The law of accomplice as defined in article 781 of the Code of Crim. Proc., has no relation, as there understood, to the law of seduction. The term "accomplice" carries with it and implies guilt, and because of this fact, the law impeaches the testimony of the accomplice and prohibits a conviction upon his testimony alone. The law of seduction does not proceed upon the idea that the alleged seduced female is a particeps criminis, but regards her more in the light of a victim who has been overreached, seduced and debauched by and through deceptive wiles and promises of the seducer and one who would not have surrendered her virtue but for such deception. This aids the legal presumption of chastity. But the fact remaining that she is no longer a chaste woman, and as being one who has fallen, without reference to the means used — she having consented, imputes to her that want of moral stamina which would prevent her from being governed by revenge or resorting to any means by which her social condition would or could be bettered. The law regards the danger in which any man might be placed, though entirely innocent, if the same weight and credit be given to the testimony of a woman of that kind as to one whose moral character had not been corrupted to such extent as to cause her to part with her virtue. Hence, the law requires corroboration as a protection against her wiles, interests, or revenge or other motive.

So much for the law. Let us apply the facts as shown by the record. From an examination of the statement of facts we fail to find evidence tending to corroborate the witness, Katie Weddel, either as to the promise of marriage, the carnal intercourse with the defendant, or the seductive acts, or words necessary to corrupt, leading up to the act of carnal intercourse.

There is proof, undisputed, of carnal knowledge with someone. The child born to her is evidence of this fact; but with whom? Not with the defendant, because the quantum of evidence fixed by law to establish this fact has not been shown. The theory of the State, however, seeks by a process of exclusion and elimination to raise the question of opportunity as a circumstance tending to corroborate Katie Weddel's testimony, and by such process exclude the idea that any person other than defendant is the father of the child. It will be difficult to find anywhere in the books a well considered case which holds that opportunity alone is of such probative force as to afford the corroboration required by law. In every instance there will be found in the record of cases other facts, such as letters, admissions or preparations for marriage or facts of like tenor going to support or in aid of opportunity. To hold opportunity alone to be sufficient would be to overthrow the presumption of chastity in the woman and that ofinnocence in the man. It would be to write every woman a harlot, and every man a debauchee, regardless of the chastity of the one and the absolute innocence and purity of intention of the other, in the face of the legal presumption that the woman is chaste and the man innocent. It would be to assume that the human family is so loosely constructed and morally weak that the mere appearance of a man in a woman's presence, unseen by others, would result in carnal intercourse. This court ought not to subscribe to so monstrous a doctrine. Upon the contrary it should cling to those sound and wise presumptions of law which writes that every woman is presumed to be chaste, and every man innocent until the contrary appears by legal and competent evidence. Now, what is claimed by the State as corroborating facts? The witness, Katie Weddel, alone testifies to the act of carnal intercourse and the promise of marriage. To corroborate her testimony as to the act of intercourse the State relies first, upon opportunity; second, the declaration of the defendant to the witness, Ed Elliott; third, as to the flight of the defendant. These we will consider in the order presented and mentioned.

First, as to opportunity. Katie Weddel testified: "I lived at Will Nash's two years. Me and Bob Nash were sweethearts two years. During that time he came to see me, and was my companion, and waited on me. During that time there were few others that went with me once or twice. These were Will Burns, Calvin Burns, Hugh Easton and Ezell Scott." In addition to those mentioned, it appears from the evidence of other witnesses that other young men visited her, to wit, Ed Elliott and Jim Bevill, and probably others, once or twice. Thus we see the opportunity was not exclusively by any means with the defendant. It is true that neither of the young men were with her as often as was the defendant, but this is immaterial. The opportunity was presented to them and each of them. There is one very cogent fact presented by Katie Weddel's testimony. The defendant was her companion for two years, and during the whole of that time, though the opportunity was frequently presented, he made no proposition of carnal intercourse to her until the time spoken of by her in her testimony, yet, according to her testimony, "he did not seem to be very timid to me at all." Upon several different times and occasions prior to the night of the act of carnal intercourse, as testified by her, he had hugged her and she had hugged him several times, and upon three different times before any offer of marriage she had sat in his lap. These facts, together with the opportunity of others, taken in connection with the testimony of all the witnesses, both for the State and the defendant, as to the good character of defendant, both for honorable deportment and gentlemanly conduct, is not to be considered as a corroborative circumstance. Another fact may here be considered, as shown by the testimony of the witness, Katie Weddel. For about two months prior to the night that she states the act of intercourse occurred there had been an estrangement between her and defendant. They had ceased to be sweethearts and their attendance upon the social function on that particular night seems to have been the first time they had been together during this period of estrangement; and it is further to be noted, under the statement of facts, that there is no evidence of any offer upon his part of marriage at any time until they met by agreement at the garden after she had slipped out of the house. Taking these facts in connection with her testimony heretofore quoted and the manner of her meeting the defendant, does not lend probative force to the question of marital contract as being of that character that shows if appellant seduced her that it was done as contemplated by the statute and certainly does not show corroboration. No witness testified to the assignation at the garden but prosecutrix, or that they were together that night.

Second. The declaration of the defendant to Ed Elliott: Ed Elliott says: "I saw the defendant in town here one day beforethe child was born, and me and him was talking about a little baseball mitt and shoulder, and something was said about he ought to get that for his boy. Something like that was said. I don't remember exactly how it was, but there was something to that amount." And upon cross-examination he said: "I went with her (Katie Weddel) one time, but that was after Bob quit going with her. I went with her to a negro concert. I don't know whether or not Bob quit going with her about May, 1906, but I know that he was not going with her when I went with her. It was some time in the spring or summer after the negro school was out, and I suppose it was in 1906, I don't remember. If he was ever with her at all after I went with her I don't remember seeing him. That was in the spring before the child was born. I was joshing him about the baby, and there was something said about the mit; I think I brought it up myself. I might have been the one that suggested that he buy one for his boy; I won't be certain; we was talking and he said `yes, he ought to buy it.'" The child was born on the 15th day of March, 1907. To give any weight to this testimony at all we must first assume that the "mantle of Elijah" had fallen on this witness. What boy was he talking about? At that time Katie Weddel had not given birth to any child. Its sex was not and could not have been known. There is nothing in this conversation which in any way, without a wonderful stretch of imagination, connects the defendant with the subsequently born child of Katie Weddel. Her name was not mentioned; she was not in sight, so far as the testimony shown or tends to show, nor does it appear from anything in the record that either Elliott or anyone else knew that the defendant was charged with the alleged offense until after this child had been born. The complaint had evidently not been lodged against the defendant, because at that time he was, according to the testimony of this witness, upon the streets of the county seat, while the sheriff testified that he made search for the defendant "on this charge of seduction" and could not find him. It is true, Elliott says, "I remember in the summer of 1906, when the complaint was made against him for seduction;" but this evidently was a mistake on his part, as no complaint was made at that time, as we gather from the record. This testimony can have no bearing whatever, we think, on this case, and can not be considered as a confession of the defendant's guilt. In fact, it ought not to have been admitted.

Third. As to the flight of the defendant. The evidence of flight is not sufficient. Independently of Katie Weddel's testimony there is nothing in the record suggesting the idea that the defendant knew anything of her seduction, or that any offense had been committed or that officers were seeking to arrest him. Granville Matthews, the constable, says: "I went out to arrest Bob Nash. I did not find him. I first went to Will Nash's and asked about him, and he said he was over at the old man's; and I went over to his father's and asked him where he was at, and the information that I got was that he was over in some woods, and I went over there and hunted the woods out for him and could not find him. I hunted for him about two hours, I guess, in the big woods in east of Mr. Nash's, but I could not find him. I kept a lookout for him until he finally surrendered, which must have been probably a year." The sheriff, Jim Frazier, says: "As such officer I made search for Bob Nash, the defendant in this case. I was not able to find him. I kept up the search about a month or three weeks and was not able to catch him." The evidence of flight is very meager and scarcely rises to the dignity of a circumstance. How or where this search was made does not appear. True, it appears that for two hours of the time one of the officers was in defendant's neighborhood, and searched through the woods, and upon inquiry as to the whereabouts of the defendant was informed that he was in the neighborhood. Charley Cawley says: "Bob left that community about the time this complaint was sworn out. It was probably a month or so before he left since I had seen him with her. It might have been three months. After the complaint was filed he left the country, and it was something over a year after that before I saw him again. I know that he went off hunting. And when he came back the trouble was on."

Neither flight nor confession are admissible to prove the corpus delicti. This, or in other words the offense, must be first shown, and not until then is evidence of such facts admissible. When the corpus delicti has been established, however, in the manner required by law, then the testimony of confession and flight become admissible for the purpose of showing the defendant's connection with the offense charged to have been committed. Here, however, the State is endeavoring to prove its whole case by such circumstances. We must not be understood as holding that circumstantial evidence may not be had for the purpose of showing guilt, but what we do hold, is that before evidence of flight and confessions can be resorted to, the body of the offense must first be shown. But here we would say that we fail to find any evidence of any confession in this record, and the mere fact of flight may be well attributable to other things or reasons as it would be to the question of seduction. There are many things that actuate men to flee when they may not be guilty, but we deem it unnecessary to go into a discussion of those matters. Katie Weddel alone testifies as to the carnal knowledge and the promise of marriage. Both of these with the other constituents before mentioned are necessary to make out a case of the offense charged. As the facts now stand, no offense has been legally shown to have been committed, because the law requires that before her testimony has any probative force whatever, there must be testimony tending to corroborate her. How corroborate her? Both as to the "offense charged" and the identity of the offender. Here we have her, if corroborated at all, only as to the act of carnal intercourse. Carnal intercourse alone does not make the offense, without the necessary proofs of promise of marriage, any more than proof of marriage without the carnal knowledge. We would be as much justified in permitting a conviction to stand where the evidence showed a promise of marriage with no carnal knowledge, as we would be where carnal knowledge alone is shown without proof of the promise of marriage. There is not one syllable of corroborative evidence in any way tending to show promise of marriage, or the meeting at the garden.

In some jurisdictions every material fact must be corroborated, while in others it is sufficient if the corroboration extends to a promise of marriage and to the intercourse. In every jurisdiction, however, it is held there must be corroboration to the promise of marriage. As is said in Rice v. Com., 100 Pa. St., 28: "In order to warrant a conviction of seduction under the promise of marriage there must be evidence to corroborate the testimony of the seduced female that there was a promise to marry. The statute defining the offense is explicit, and the rule is not changed by the fact that a defendant can now testify in his own behalf." And "mere proof that the defendant had opportunity to employ seductive arts does not constitute evidence corroborative of the prosecuting witness." See State v. Smith, 54 Iowa 743; State v. Araah,55 Iowa 258; State v. Painter, 50 Iowa 317; State v. Hill, 91 Mo., 423. "On the trial of an indictment for seduction under a promise of marriage, the promise can not be proved by evidence of attentions, or the expressions of contrition for the seduction, and by a promise made after the seduction to marry the girl after a time." Cole v. State, 40 Tex. 147; Rice v. Com., 102 Pa. St., 408; People v. Clark, 33 Mich. 112; People v. Millspaugh, 11 Mich. 278.

The testimony of the witness, Katie Weddel, does not, to our minds, establish the fact that it was exclusively the promise of marriage and her reliance thereupon which caused her to yield to the acts of intercourse. See Simmons v. State, 55 Tex. Crim. 441, 114 S.W. Rep., 841; Putman v. State, 29 Texas Crim. App., 454. She, the defendant, and several others, had just returned in a wagon from an ice-cream supper. She alone testifies to these facts. Outside of her evidence there is not a fact tending to show she ever even met appellant at the garden at night. This is where promise of marriage was made, if ever made. When they arrived where she was staying she and the defendant got out of the wagon. This was between ten and eleven o'clock at night. She was twenty-two years of age in December, 1909, and he was twenty-two September 14, 1909. She says: "When we got to the door he said he wanted to talk with me and asked me if I would go with him out there (the garden). He said he would wait for me, and I went in the house and put up my fan and handkerchief and some other things, and went in and turned down the cover on my bed. The reason I went in the house I knew they was all awake, and I went in there and slipped out when I came out. I didn't want them to know I left the room at all. I pulled off my shoes and went out in my stocking feet. I did not change any of my clothes, and did not take off any of my clothes, except my shoes. When I came out he was out by the side of the garden waiting for me, and asked me to sit down, and I sat down, and we talked on awhile, and he asked me to submit to him, and he promised to marry me. I don't know that I can remember every word that he said to me, but he asked me if I still loved him, and I told him yes (which I did), and he asked me to submit to him, and I would not do it, and he said, well, you know I would not harm a hair on your head. He says, you know I would not betray you. He says, you know I would not harm you for anything on earth. He just asked me if I would let him have it, and I didn't want to at first, and he kept insisting, and I finally agreed. I asked him what would he do. I said people will be finding this out. He says, no, they won't know anything about it. He says, we mean to get married and we will get married before anybody knows anything about it. He says, there will be no harm done, and nobody knows it. I says, `Well, maybe not.' I did not have any feeling or desire for sexual intercourse right at the time I consented, and did not have any desire for it before I consented. He had his arms around me while we were sitting down. I put my arms around him, and he put his arms around me. We sat there in that position but a very few minutes." Then again, "I had no desire whatever to have sexual intercourse before we laid down on the ground." The testimony here detailed is absolutely inconsistent with the idea that she yielded her virtue alone upon her belief in the promise of marriage. Every fact detailed by her points to the conclusion that she prepared for the act of carnal intercourse. The crafty manner in which she sought to deceive the people of the house into the belief that she had gone to bed, the secret and clandestine manner in which she left the house, having first pulled her shoes off, savors more of an assignation than it does of one expecting a promise of marriage. These facts when taken in connection with the testimony of Mrs. George Willis show an intent and purpose on Katie Weddel's part to place the defendant in a position where he would be compelled to marry her. Mrs. Willis says: "She (Katie Weddel) told me that if she could not get Bob Nash one way she would another." This testimony of the prosecutrix smacks more of a bargain and barter than it does of a surrender of virtue in good faith upon a promise of marriage.

As was said in State v. Reeves, 97 Mo., 668: "No one can, with any degree of plausibility, contend that a virtuous female can be seduced without any of those arts, wiles and blandishments so necessary to win the hearts of the weaker sex. To say that such a one was seduced by simply a blunt offer of wedlock in futuro, in exchange for sexual favors in presenti, is an announcement that smacks too much of a bargain and barter, and not enough of betrayal. This is hire or salary, not seduction."

I can see no sufficient testimony in this record to support this conviction. Wherefore, the motion for rehearing ought to be overruled. I therefore enter my dissent.

ON REHEARING. February 22, 1911.