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

This conviction was for seduction, the punishment assessed being four years confinement in the penitentiary.

The alleged seduced female testified that appellant had sexual intercourse with her on account of a promise to marry; that this occurred about the last of June or first of July; that she submitted to appellant because he promised to marry her, and she thought him true; that she loved him, and thought he would fulfill his promise; that appellant told her he would marry her if she submitted. A child was born on the 15th day of the following March. The parties were about the same age. Coming down to the particular facts of the first intercourse, she said it occurred out by the garden at night after they had returned from an ice cream supper, a distance of about six miles from where the act occurred. The prosecutrix says she came back from the supper in a wagon in company with several other people; that she got out of the wagon at the big gate just in front of the house; that when she got out of the wagon appelllant asked her if she would meet him out by the garden. She further testified: "After we got to the house he asked me if I would not come out there and talk to him. I was fixing to go to town the next morning, and he asked me if I would, and I did not want to go, and he insisted on my coming, and begged me to come, and I went. When we got to the door he said he wanted to talk to me, and asked me if I would go with him out there. He said he would wait for me, and I went in the house and put up my fan and my handkerchief and some things, and went in and turned the cover down on my bed. The reason I went in the house, I knew they were all awake, and I went in there and slipped 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. When I came out he was out by the side of the garden waiting for me, and he 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 just every word he said to me, but he asked me if I still loved him, and I told him yes, and he asked me to submit, 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 says, people will be finding this out; he says, no, they won't never 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 for nobody knows it. I says, ``Well, maybe not.' I suppose that was somewhere between 10 and 11 o'clock. I did not have any feeling or desire for sexual intercourse right at the time that 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. He had not said anything to me along that line on the way home; there was no opportunity; there were others in the wagon. We were sitting by the side of one another in the wagon, but we did not have our arms around one another. It was not a very light night, but the moon was shining some. When we got to the door we talked a few minutes, and he asked me if I would meet him out there; said he wanted to talk to me awhile. I went in the house first, because I knew they were all awake and knew they would all get up, and I knew better than to go out there just as I was, and I went in the house and made like I was going to bed, and I pulled off my shoes, turned down my bed, and slipped out. I had no idea what he wanted me to go out there for except what he said. He had hugged me before that time, and I had hugged him several different times. I had sat in his lap. He had not gone with me so often before that happened for some little bit; we had had a falling out, and we had just made up, I believe, on Monday night before that, and that was on Saturday night."

There is testimony by this witness of two other acts between the parties at intervals of four weeks which occurred under similar circumstances to those already testified. There is evidence that a complaint was filed against appellant some months after this intercourse, and that he left the country and was gone awhile, but was finally arrested. There is evidence to the effect that appellant and prosecutrix were together in public quite a number of times, going to prayer meetings and social occasions, and there is also evidence that she went with other young men occasionally. All the witnesses or nearly all of them testified to the good reputation of both prosecutrix and appellant, and that they were young people, about the same age, the prosecutrix a little older than appellant. There is no further evidence than that detailed in regard to the promise of marriage, nor is there any evidence other than that of the prosecutrix that appellant ever had intercourse with her except on one occasion where he, appellant, and one of his friends were in town, and the friend said something to appellant in regard to purchasing a toy for his boy, the evidence showing that prosecutrix gave birth to a male child. It may be conceded as a fact not to be controverted that prosecutrix had intercourse with some man. This is the only way to account for the birth of the child.

In order to constitute the crime of seduction, there must be a seducing or leading away of the girl from the path of virtue; the intercourse had with the seducer; the promise of marriage. The alleged seduced female must be corroborated in essential elements of the alleged offense. We are of opinion the evidence does not show that the prosecutrix was corroborated as the law requires. It further appears from the testimony of the prosecutrix that while they had been sweethearts for a couple of years, they had had a "falling out," and had only made friends on the Monday night previous to the alleged intercourse. She does not state there had been an agreement to marry prior to the night of the first act of intercourse. This is to be assumed, if at all, from the fact that they had been sweethearts before that time, but had broken off their friendly relations. So far as any positive evidence on her part is concerned, the first promise of marriage was made out by the garden after she had gone out of the house to meet him at the designated and agreed point. We are, therefore, of opinion that under the facts stated the evidence does not justify the conviction. There is not sufficient corroboration of the prosecutrix as contemplated by the statutory definition of the offense of seduction and the decisions in this State. Putnam v. State, 29 Texas Crim. App., 454; Wisdom v. State, 45 Texas Crim. Rep., 215, 75 S.W. Rep., 22; Simmons v. State, 55 Tex. Crim. 441, 114 S.W. Rep., 844.

The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.