Bailey v. State , 36 Tex. Crim. 540 ( 1896 )

Appellant was convicted of seducing Miss Addie Hardin, and appeals. It is insisted by counsel for appellant that the proof in this case fails to show that Addie Hardin was unmarried. She lived with her mother, Mrs. Adeline Hardin. She was called "Miss Addie Hardin." She received the addresses of the defendant. They were engaged to be married. This is sufficient proof that she was an unmarried woman. See, State v. Heatherton, 60 Iowa 175; 14 N.W. Rep., 230. Mrs. Hardin lived near the town of Van Alstyne, Grayson County. She swears that, for a month or two before Addie's death, defendant was frequently at her house, visiting her daughter, Addie Hardin. He came to her house about once a week during that time, to see Addie Hardin. They were engaged to be married. About two weeks prior to the death of Addie Hardin, appellant told her (Mrs. Hardin) that he and her daughter were going to be married, and asked her consent to the marriage, which she gave. This is sufficient proof that they were engaged to be married. Appellant contends that the evidence is not sufficient to show carnal intercourse between the parties. The State must show that the appellant had carnal intercourse with Addie Hardin. There can be no seduction without this. This, however, can be proved by circumstantial evidence. Ranzy McMakin testified "that, about the time defendant commenced going with Addie Hardin, I had a conversation down in the field one day, in which defendant said that he was going to have intercourse with Addie Hardin, but that he had no idea of marrying her. That was about three months before Addie Hardin's death." In this we find a desire on the part of the appellant to have intercourse with Addie Hardin. It is shown by the testimony that, when they went to the hotel in Van Alstyne, they claimed to be man and wife; and that defendant stayed all night with her in the room at the hotel. Here was a purpose and inclination to have intercourse with Addie Hardin, and there was an opportunity to accomplish that purpose. We believe the circumstances amply sustain that part of the charge, to-wit: that he did have intercourse with Addie Hardin. See, Bishop's St. Crimes, § 679. It is contended by appellant that there is no proof in this record to show that appellant referred to or repeated the marriage engagement between the parties when he obtained carnal intercourse with Addie Hardin, in the hotel at Van Alstyne; to state the proposition in a different form: that, to constitute seduction at the time the carnal knowledge was obtained, appellant must have then promised to marry the party seduced, or that he must have alluded to the contract of marriage; that it is not sufficient if the parties be engaged to be married, but the engagement or promise must be used at the very time that carnal knowledge was obtained. We do not concur in this contention. The record shows that the appellant was engaged to be married to Addie Hardin; that he had requested her mother to permit him to marry her, to which she had agreed. The record shows that, when they went to the hotel, both claimed to be man and wife. Now, we hold that, if the promise to marry was the moving cause — that is, if the carnal intercourse was the consequence of a prior promise of marriage — it does not matter whether this promise was repeated or not at the time the parties had carnal intercourse with one another. This question arose in Armstrong v. People, 70 N.Y. 38. In that case the prosecutrix testified that the promise of marriage was made in the latter part of May, and that the illicit intercourse took place on August 5th thereafter, at the house of Dr. Kimball. The Supreme Court of New York held that, if the promise made in May (being before the seduction) was the cause of the illicit intercourse, that would be sufficient. If the rule were otherwise, in jurisdictions in which the prosecutrix is not permitted to testify, it would be almost impossible to convict; and it would be a rare case, indeed, that proof could be made that the promise of marriage was made at the time of the intercourse, and, even if such proof could be made, it might smack strongly of barter and sale. At one time in this State the prosecutrix was not a competent witness; and, under that state of the law, prosecutions have been sustained, all the necessary elements of the crime being established by circumstantial evidence. We are of opinion that the proof is sufficient to establish the fact that Addie Hardin was seduced and led from the path of virtue by appellant, and that he had carnal intercourse with her. This being the case, the offense of seduction is complete. There being no errors in the record, the judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing, was overruled without a written opinion. — Reporter.]