Johnson v. State , 188 S.W. 426 ( 1916 )

DAVIDSON, J.

Appellant was convicted of seduction, his punishment being assessed at four years’ confinement in the penitentiary.

Prosecutrix testifies to protestations of love by defendant and her reciprocation; that she had never had intercourse with any other man prior to her first act of intercourse with defendant. She says this continued for nearly three years. She gave birth to a child. Its paternity she attributes to defendant. Appellant admits the intercourse, but denies the seduction and promise of marriage. Under his theory the testimony did not dignify the offense as being higher than that of illicit intercourse which would constitute fornication. There are some facts and .circumstances in the case elicited from her which tend to show that she may not have been as pure and chaste as the state contends. Some of her association and acts tend to somewhat impair her purity of thought and mind. She denied, however, that she understood the environments to be of an impure nature. It is not the purpose of this opinion to go into a detailed statement of those matters.

This brings up one of the bills of exception which shows defendant offered to prove that one of the girl associates of prosecutrix fell by the wayside and gave birth to a child; that this girl subsequently married the author of her shame. There is also evidence about some other matters. The appellant then offered to prove on cross-examination of the girl that she associated with the girl who married her betrayer subsequently, and after she had .given birth to the child. We are of opinion that on another trial this testimony should be admitted. This happened before prosecutrix says her illicit intercourse began with appellant. It has been held in several cases that the unchaste character of the associates of prosecutrix can be shown as affecting her chastity.

There are quite a number of bills of exception to the refusal of the court to permit appellant to introduce in evidence letters written by prosecutrix to himself. The bill shows the court had admitted letters written by defendant to her. These letters should have been introduced. The contents of the letters are remarkably vulgar, obscene, unchaste, and impure, so much so that the trial judge for that reason would not permit them to go to the jury. Another ground why he refused to admit the letters was that they were written after the alleged seduction.

There is also another bill showing some prose and poetry that is as obscene and dirty as is possible to have been written. In all of the eases of seduction that have come before this court no language in any of them has approximated the vulgarity and obscenity of those offered in evidence and rejected by the court. Prosecutrix had testified she had never had intercourse with any other man, but the letters show a familiarity with indecencies and impurities that is not compatible with the thoughts or words of purity or chastity. It may be questioned that in any brothel of the lowest order more indecent language could be uttered. ' The fact that these matters occurred'after the alleged se-Auction is not a reason why they should not be introduced. They bore directly upon the chastity and the credibility of the witness. The jury could well consider that a woman who would use such language as set out in those letters and the expression used in the poetry was of an impure and unchaste mind. They were so impure that the trial judge would not permit them to be read in his court. These matters are, however, all perpetuated in bills of exception. Seduction does not consist in the mere promise to marry, followed by acts of sexual intercourse. The woman must be pure and chaste to be the subject of seduction. It would hardly be contended that an impure and unchaste woman could be seduced by the promise alone of marriage. If so, then the promise to marry a lewd woman would form the basis of seduction. This statute was intended to protect the virtuous and the pure. It was intended to punish the seducer of chaste women. The unchaste and the prostitute are not the subject of seduction. In order to constitute seduction, the purity of a woman must be overcome, led away, and then illicit intercourse occur by reason of promise of marriage. However pure the woman may be under this statute, seduction will not be consummated alone by the act of intercourse. There must still be the further constituent element shown; that is, the chastity. If she is led away by her affection, or for any reason she submits, it would not be seduction unless the promise of marriage also enters into the case. Immorality, fornication, and adultery do not form a basis of seduction. The jury might well believe from reading these letters that she was not, at the time of her first intercourse, a pure and chaste woman. The rejection of this testimony by the court on account of the vulgarity and obscenity is creditable to his high sense of chivalry, but the defendant was on trial for seducing a chaste woman, and any fact that shows her to be of an unchaste and impure character is introducible to show that fact, whether it occurred within a reasonable time before or subsequent to ' the alleged seduction. It has also been held in this state, and correctly, that long-continued intercourse of an illicit nature between the prosecutrix and her alleged seducer may be also evidence of the fact that she was not seduced, and it tends to show the converse. It has the effect, or may, to show that it was not seduction, but fornication. What the result of the verdict would have been with this testimony before the jury may be a matter of speculation. We cannot tell about its result or effect on the jury, because it was not permitted to go to them. The very reason the court gives for exclusion is one of the strongest reasons for its inclusion. Its vulgarity and obscenity does not afford a ground for rejecting the evidence. It affords a stronger reason why the letters should have been introduced. The writer does not care to place in the jurisprudence of the state the contents of these letters. It would serve no useful purpose, but it may have been of great value to the defendant to show the condition of the woman’s mind at the time of her alleged seduction. On another trial this testimony will be admitted in evidence.

There is another bill of exceptions reserved to the action of the court, which will not occur upon another trial. It shows while the appellant was upon the witness stand he was asked with reference to a picture of the child of the prosecutrix. The judge stated that it would be legitimate in connection with certain matters which might tend to induce the jury to believe it was his child by reason of the resemblance to appellant. Subsequently, however, he withdrew the matter from the jury. This character of testimony under the authorities of Texas is not permissible.

We are of opinion 'that the court was in error, with reference to the letters especially, and the court should have awarded appellant a new trial.

The judgment is reversed, and the cause remanded.

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