Ice v. State , 84 Tex. Crim. 509 ( 1919 )

The conviction is for seduction. The fact that prosecutrix submitted to intercourse with the appellant upon his promise of marriage was definitely testified to by her and supported by other evidence constituting sufficient corroboration. There was proof that she gave birth to a child; that appellant when charged with her seduction, after first denying it, stated in substance, when told that prosecutrix's mother was going to press prosecution, that if he was given a few days he would marry the girl, that he first wanted to procure a place to take her, and obtaining consent, he fled. The prosecutrix said that when he was informed of her pregnancy he promised that the wedding would take place in a short time, and that he would make effort to procure a certain named place to live, and there was other evidence that he did make the effort. There was evidence, aside from her testimony, that she made preparation to marry.

A second application for a continuance was based upon the testimony of an absent witness by whom appellant expected to prove that the witness had had sexual intercourse with the prosecutrix prior to the date of the offense. The trial court regarded the diligence insufficient. The indictment was filed the 18th of April, 1917; the trial took place the 7th of September, the same year. A subpoena issued for the witness to Fisher County was returned not executed on the 2nd day of May, 1917. The subsequent diligence was based upon the allegation of inability to learn his whereabouts. He had moved to a point in New Mexico, at which he had lived for a number of months; had many acquaintances in the neighborhood in which the appellant lived, with some of whom he was in correspondence, and, we think, under the facts developed, that the trial court did not abuse his discretion in overruling the application for a lack of diligence. From the evidence developed upon the trial the court, we think, was also justified in the conclusion stated by him, that the alleged testimony was not probably true.

Evidence of two other acts of intercourse was introduced, and is complained of. It is said in Walls v. State, 69 Tex. Crim. 317, that it is the settled rule that in this character of case subsequent acts of intercourse are provable. The writer is not prepared to coincide with a statement so broad, as it is conceivable that cases will arise in which such testimony should be rejected. The discussion of the question in the similar case of Bradshaw v. State, 82 Tex.Crim. Rep., expressing the view that such is to be received when it is relevant upon a controverted issue, expresses the view of the writer upon the subject. Proof of the acts complained of was accompanied by other circumstances, going to corroborate prosecutrix, including a statement by her that they were coincident with a renewed promise of marriage at a fixed date within a short time, and come within the rule stated. This conclusion is in harmony with the text in Underhill on Evidence, section 389, and with the opinion in Waterman v. State, 75 Kan. 253.

The evidence introduced by the State, by several witnesses besides prosecutrix, that she made dresses in preparation of marriage, was admissible as a corroborative circumstance. Underhill on Evidence, section 388, it being a provable circumstance which usually accompanies an engagement to marry. State v. Hill, 4 S.W. Rep., 121.

Complaint of the refusal of the court to permit appellant to lay the predicate for the impeachment of his witness McCarty, can not be sustained for the reason that McCarty, when introduced by appellant, gave against him no damaging testimony, but simply failed to give the evidence which appellant desired. An often exemplified rule sustains the action of the court. Bennett v. State, 24 Texas Crim. App., 77, also Branch's Texas Ann. P.C., sec. 164.

The exceptions to the court's charge upon the ground that it failed to give the defendant the benefit of the reasonable doubt, and that charging the failure of the court to instruct the jury that the prosecutrix was an accomplice, and that complaining of the failure of the court to instruct the jury that intercourse by the prosecutrix with others prior to the alleged offense would require an acquittal, are not sustained by the record, these matters all being covered by the court's charge and the supplemental charge given.

Nor is the complaint that the court failed to limit the impeaching testimony, well taken for the reason that the court did limit such testimony as far as the law required it to be done, in telling the jury that the fact that the witness Zeb Ice was indicted could be considered alone upon the question of his credibility.

The failure of the court to charge the jury on the theory that there was evidence showing that the prosecutrix submitted to the intercourse for reasons other than that alleged in the indictment, was not error, there being, in our opinion, no evidence raising the issue. The prosecutrix's character for chastity being challenged by the introduction of evidence by the appellant of acts of intercourse with other parties, the State was within its rights in supporting her character by proof of general reputation. On cross-examination of the witness Zeb Ice the State, over the appellant's objection, proved by him that he was under indictment for perjury. It has been often held that proof of indictment for a felony or an offense involving moral turpitude is admissible upon cross-examination of a witness for the purpose of affecting his credibility. As presented in the bill, we find nothing to distinguish the proceeding complained of from those passed on in the numerous cases heretofore decided. Light v. State, 21 Texas Crim. App., 313, and other cases listed in Branch's Texas Ann. P.C., sec. 167.

We are referred, however, to the case of Bennett v. State,47 Tex. Crim. 58, in which it was made to appear that one of the witnesses for the accused had been indicted for perjury because of his testimony on a former trial of the same case and acquitted. It further appeared that the indictment was obtained for the purpose only, and for the express purpose of disqualifying and discrediting the testimony of the witness in the case on trial. This being shown, manifestly the expressions of Judge Brooks in writing the opinion in the case mentioned, to the effect that one accused of crime could not be deprived of the benefit of the testimony of a witness in his favor or have such witness discredited by an indictment fraudulently obtained for the unlawful purpose of depriving the accused of his evidence. If such a state of facts were presented here we would not hesitate to withhold our sanction of a conviction resulting therefrom. Doughty v. State, 18 Texas Crim. App., 179. Such information as is brought before us, however, by the bill of exceptions and the record does not disclose a transaction of the character mentioned. See Perry v. State, 34 S.W. Rep., 618.

Such of the special charges requested as were applicable to the issues raised are embodied in the main charge.

The judgment of the District Court is affirmed.

Affirmed.

ON REHEARING. February 5, 1919.