Faulkner v. State , 53 Tex. Crim. 258 ( 1908 )

Appellant was convicted for seduction, his punishment being assessed at seven years confinement in the penitentiary.

The facts may be stated as follows: Appellant and Miss Florence Rodden became engaged to be married, which engagement lasted for some months, and was broken off at the instigation of appellant. This may be taken as an admitted or conceded fact as both appellant and Miss Rodden so testify. It may also be stated as an admitted or conceded fact that the engagement was broken off in August. Shortly after the cessation of the engagement, Miss Rodden wrote appellant a letter, which he received, asking him to continue his visits. Appellant paid no attention to the letter or the request for something like five or six weeks, when, Miss Rodden testifies, about the 26th of September he again called. She testifies further that they became re-engaged in October, and that the night of the 6th of November they had carnal intercourse under a promise of marriage on the part of appellant. She says at the time the engagement of marriage was broken up, he told her that he thought more of her than any other girl but could not marry her, giving no reasons for not doing so, except that he was not able to marry; that she was not certain when this statement was made, whether before or after the engagement was broken off. Subsequently, appellant told her he did not care enough for her to marry her; she says the next morning after this statement from him she wrote him a letter asking him to come back and be her friend; that up to this time he had never said or done anything that led her to believe he would ever try to take any advantage of her, nor did he ever do anything ungentlemanly in her presence. Among other things contained in the letter written by her to appellant, she says, "I don't ever hear of anything these days but some one being sick. I never heard of the like. I had a light case of la grippe myself, but was my own doctor and nobody knew I was sick. Willie complains all the time. I don't wonder [at] that, though; if I looked like she does, I would crawl in a hole and pull the hole in after me. Hope being close to a man won't ever cause me to look like she does. You had better look out; I think I can catch Bearch W., for he smiled at me last Sunday, and talked to me too. Don't you think he carried an old hen to church. * * * Verna and W. have been writing for me to come and stay awhile with them, and I did think that I would go until V. wrote and said that she had a whole lot to tell me that you had said about me, and I have decided not to go, for I do not want to hear what she has to tell me. I know you are a bad boy, but I say, give the devil his dues, for he is bad at his best. The landlady at the Rodden residence has been very busy making baby clothes. She is making plenty of them. Verna said for me to come over and help her make them, but I am not ready to do such sewing as that. Willie told me the other day to take her advice and never marry, for men were dangerous things. I don't doubt that, but I ain't going to marry until I get a chance, for I have always heard it was $50 fine to marry without a chance. I guess you think I am crazy to marry, for I think I about half-way made you believe that any way. Of course, I will the first chance, but I don't want to half as bad as I talked like I did." Willie to whom presecutrix referred was prosecutrix' step-mother. While upon the stand she was asked to explain what she meant by this part of her letter, but she declined to do so.

Carnal intercourse occurred on the night of the 6th of November. The child was born on July 8, 1905, about 242 days after the act of intercourse should have occurred. She testified further that no one ever had carnal intercourse with her up to the night of November 6th. It occurred in a buggy, as they were driving along the road; that they did not stop the horse; no one was driving. She says she got in a family way that night; that the act did not give her much pain; sickness was on her at the time, and it was not much trouble to cause penetration. Subsequent to her intercourse with appellant she made a written statement, all of which is unnecessary here to recapitulate. She, among other things, states that she was never sick like other women, which made her think nothing was wrong. "One eve we went to Leona and then to Henson's, and was aiming to go home before night, for Marvin had promised to go to Vashti that night, and Ruth and Walter Thompson begged us to go to church that night, until we give up to go, and that was when the awful deed was done. He proposed, and, of course, I refused. Told him that was the wrong time any way, and that was the last thing I ever intended doing. It was as mean as hell itself. I preached to him about it; he tried to get me not to talk so loud, but I was mad; don't know who heard me; he then seen I was not going to give up to such. He said he knew there was not anything the matter with me, and he couldn't hurt me, but I never give up, and just when he done it I couldn't tell if I was going to be hung. We quit, and I never spoke to him for a month, and Mollie tried to get me to go home with her; said I would have a way to get home, and I knew or thought I knew that Marvin had her to do that. I never went, and when I come home he come. I told him I did not think he would ever come back, and he said I ought to know he would, and that he wouldn't ask me if he could come; and we made up, and when I seen that something was wrong, I told him that something was wrong somewhere. I did not know anything had been done to hurt me, and he said that he knew nothing had been done, and time went on and he said that he would get me some medicine if I wanted it." During her examination on the witness stand she stated that "he asked me that and when I refused him then he said that I knew he would marry me if he hurt me in any way," and that was what she testified to a year ago, but on the examination she stated that statement was not a fact. On her examination this occurred: "Q. Who did you tell of your engagement? A. No one at all. Q. Didn't anybody know it so far as you know? A. No one at all. Q. Didn't nobody know that he had proposed to marry you or that you had consented? A. No, sir; there was no one that ever heard him say anything about marrying me. Q. So far as you know there was no one that knew anything to the effect that he had proposed marriage to you, and that you had acceded to his proposal? A. No, sir." She also testified that before the act of intercourse, she would sit in defendant's lap, without his having pulled her in his lap. This perhaps may be a sufficient statement.

There are several errors assigned upon the charge as given, and refusal to give requested instructions, and to the ruling of the court admitting testimony, as well as insufficiency of the evidence. I have carefully read this record to ascertain if there are facts corroborating the prosecutrix' evidence as to the seduction. In order to prove this offense under our statute, it is necessary that the girl's mind be led away by arts, wiles and blandishments from the path of purity, and then the act of intercourse be followed under the promise of marriage. It is not sufficient that the mind be debauched; the body may also be debauched under the promise of marriage. The seducing of the girl's mind and the final act of intercourse by reason of the promise of marriage must occur to constitute this offense under our statute. It is further necessary, inasmuch as the seduced female is an accomplice when testifying, that she be corroborated as to the agreement or contract of marriage. Without going into the facts in regard to any other phase of the case than that of promise of marriage, we fail to find any corroboration as to that fact. It is true that they had been engaged up to August, 1904, when it was broken off. She says that this engagement was renewed perhaps in October following, and that the act of intercourse occurred one night on their return from church at Leona, and under circumstances sufficiently detailed in the statement of evidence, supra. She testified clearly that that no one knew of the engagement; that she never mentioned it, and the evidence fails to show any corroboration of her statement as to the second engagement. Of course, the act of intercourse could not have occurred in pursuance of the first engagement, because all the testimony shows that had ceased some months before she should have surrendered her virtue. Appellant denied emphatically the second engagement, and there the matter stands so far as the record is concerned, except her written denial of knowledge of the act of intercourse and what then occurred. There is some evidence, however, to the effect that he went with her occasionally, but these visits, as far as the evidence is concerned, are mainly confined to the existence of the prior engagement. There is one fact perhaps that might be stated of a criminating nature, to wit: appellant's flight. This, however, seems to be attributed to his fear of vengeance on the part of the father and uncle of the girl, and more especially that of the uncle. This does not prove, nor legally tend to prove an engagement to marry. He admits having had carnal intercourse with her, but had told her all along that he could not marry her, assigning reasons. I do not believe, therefore, that under the statute and decisions of this State that the girl's testimony in regard to promise of marriage is corroborated. The fact that she had a child would not corroborate her as to the promise of marriage. It is a powerful circumstance to show that she had intercourse either with appellant or some other man. In fact, following the law of nature, in regard to reproduction, I take it, as a conclusive fact, that she had had intercourse with some man. We only try violations of law under the statute denouncing the offense, not for immorality. I am of opinion, therefore, that the evidence is not sufficient. Rape, fornication, adultery and incest are morally wrong, and often shocking to humanity, but they do not prove seduction, nor show contract of marriage, nor tend to do so.

This requested instruction was refused: "You are instructed that you cannot consider the testimony as to the engagement, or any promise to marry made by defendant to the prosecutrix at any time prior to August, 1904, and you can only consider a promise to marry made by the defendant to the prosecutrix after the month of August, 1904; if you find that the defendant made any promise, and before the act of carnal intercourse, and unless you so find you will acquit the defendant." I think this charge should have been given. The contract or the promise of marriage in existence prior to August, 1904, had been cancelled and was no longer in existence, and the jury should have been told that the seduction could not have occurred by reason of that promise of marriage, if one existed. The court had charged the jury that if they should find from the evidence that appellant at any time within three years next prior to May 2, 1906, had seduced Florence Rodden by promise of marriage, etc., they should find him guilty. The promise of marriage had been broken off in August, 1904, within two years of the 2nd of May, 1906. Under this charge of the court, the jury could have convicted him under the prior but dissolved contract of marriage. The court further charges the jury that they must acquit, unless they believe from the testimony, etc., that defendant had carnal relations with Florence Rodden in Clay County, within three years next prior to May 2, 1906, and that she relied on such promise of marriage made to her prior thereto by the defendant.

For the errors indicated, this judgment ought to be reversed and remanded. I therefore respectfully enter my dissent.