Staples v. State , 76 Tex. Crim. 367 ( 1915 )

I have been unable to agree with my brethren in the disposition of this case. There are several questions of considerable importance that ought to cause a reversal. I shall only mention, however, two, the act of the court in withdrawing the plea of jeopardy and the sufficiency of the evidence.

When the case was called for trial appellant interposed the plea of jeopardy. There was no demurrer to the plea. Evidence was introduced in support of it and it went before the jury. The court, however, in his charge withdrew it from the consideration of the jury. I do not understand upon what theory this was done. It may be that the court thought the record did not justify the plea. In this connection it was shown, without controversy, that the witnesses were in attendance upon the grand jury to testify in regard to the illicit intercourse between appellant and prosecutrix, Tempie Roberson. Dr. Bell, one of the witnesses whose testimony was of importance, was carried before the grand jury, as was the mother of prosecutrix. She says, however, that after being sworn she was dismissed without testifying. The remaining witnesses were not before the grand jury, but were in attendance upon that body. The grand jury excused the witnesses and failed or refused to present an indictment against appellant. The indictment upon which this prosecution was based was found by a subsequent grand jury, that is, at a subsequent term of the District Court. After the grand jury failed or refused to indict appellant for seduction, or for any other offense, the county attorney's office filed a complaint and information charging him with fornication, in the County Court. Appellant plead guilty and paid his fine and costs. The matter with reference to the action of the grand jury as to what should be done with appellant under the circumstances seems to have been rather thoroughly discussed between the assistant county attorney and one of appellant's counsel, after the grand jury failed to indict. Subsequently, the prosecution for fornication and the judgment thereon followed. The State as well as the defendant introduced the complaint, information and judgment of the County Court in the fornication case on appellant's trial in this case.

In regard to the plea of jeopardy, it was shown conclusively by the judgment, as follows: "March 21, 1914. This day this cause was called for trial, and both parties appeared and announced ready for trial, and the defendant, Bernice Staples, after being duly admonished of the consequences thereof by the court, pleaded ``guilty' to the charge herein, and waived a trial by jury and submitted his cause to the court. Wherefore it is considered by the court that the defendant is guilty as charged, and his punishment is assessed at fifty dollars fine. It is therefore considered, ordered and adjudged by the court, that the State of Texas do have and recover of the defendant, Bernice Staples, the said fine of fifty dollars and all costs of this prosecution; and the defendant being present in court is placed in custody of the sheriff, who will commit him forthwith to the jail of said county until said fine and costs are paid. And execution may issue against the property of the said defendant for the amount of said fine and costs." It was shown also by the testimony of the assistant county attorney, one of appellant's counsel, and appellant himself that he pleaded guilty to fornication in the County Court after the whole matter was discussed between his counsel and State's counsel, all three of them testifying that he pleaded guilty and the judgment of the court states that he pleaded guilty after being admonished by the court as to the consequences of his plea, and that he was then in court, and remanded to the custody of the sheriff until his fine and costs were paid. It is also shown conclusively and not questioned that he paid the fine and costs.

After the argument the court withdrew the entire plea of prior conviction and all the evidence in support of it from the consideration of the jury. Under this record it is my opinion that the plea of jeopardy was well taken and should have been sustained, and the court was in error in withdrawing it from the jury. There is no question of the fact that the fornication case was based upon the same facts as those introduced in the trial of this case for seduction.

It is well established under the doctrine of carving that where the State prosecutes and secures a conviction this would bar any prosecution either on the same facts or the facts growing out of the general transaction. For collation of authorities, see Mr. Branch's work on Criminal Law, sec. 399. The doctrine there laid down is thus tersely and correctly stated by Mr. Branch: "He (State's counsel) may carve as large an offense out of a single transaction as he can, but he must cut only once." Gresham v. State, 19 Texas Crim. App., 513; Paschal v. State, 49 Tex. Crim. 111; Moore v. State, 33 Tex.Crim. Rep.; Shubert v. State, 21 Texas Crim. App., 551; Herera v. State, 35 Tex. Crim. 607; DeLeon v. State, 55 Tex.Crim. Rep.; Quitzow v. State, 1 Texas Crim. App., 53; Taylor v. State, 50 Tex. Crim. 288. To the same effect is Wilson v. State, 45 Tex. 81; Hudson v. State, 9 Texas Crim. App., 151; Simco v. State, 9 Texas Crim. App., 338; Hirshfield v. State, 11 Texas Crim. App., 216; Adams v. State, 16 Texas Crim. App., 162; Willis v. State, 24 Texas Crim. App., 588. These are certainly enough decisions from this court to support the enunciated doctrine.

The decisions also draw a distinction between former acquittal and former conviction. This has been noticeably so by the decisions in Texas since Simco v. State, 9 Texas Crim. App., 338. These are also collated by Mr. Branch in his work on Criminal Law. It is also stated by Mr. Branch, and correctly, that former conviction, unlike former acquittal, to be a bar, only requires that the transaction or the facts constituting it, be the same as applied to the doctrine of carving. It has also been held that if the court had jurisdiction and defendant submitted to the judgment and paid his fine and costs, such conviction will sustain a plea of former conviction, though the pleading was defective. Davis v. State, 37 Tex.Crim. Rep.. It is unnecessary to cite further authorities on that proposition. Under these authorities and under the Constitution as well as the statute, where the State sees proper to prosecute and obtain a conviction for fornication, and both transactions are based on the same transaction, and the State secures a punishment, the plea of jeopardy is well taken. So the State having obtained a conviction for fornication on the same state of facts upon which it relied for conviction for seduction, and it growing out of the same illicit relation and the same transaction, it is debarred from further prosecution on those facts for any other offense. I do not care to follow that question further.

In regard to the second proposition, that is, the want of sufficient evidence, I confine myself to rather a brief statement of the case. The prosecutrix testified to an engagement between herself and appellant, and further that he importuned her to have intercourse with him from that viewpoint. She says at first she refused but subsequently yielded. She says in this connection: "The last conversation I told about, at the time when I gave up to him, was upon an occasion when we had been up to his father's house and was coming on back; he was begging me, like he usually was whenever we were out that way; so I told him if we did, I rather be in a house somewhere, and we had to pass by his brother's house, and they were gone, and we agreed to go in there, in his brother's house. . . . We both agreed to go in the house. I told him that if I did act that way, I had rather be in a house, and we decided that we would go in his brother's house. We did go in there, and he had something to do with me in there; well, he tried, but then he couldn't. He did not succeed in ``doing it.' We did not stay in there long; about ten or fifteen minutes, I reckon. . . . At the time I did this I was willing to have intercourse with him. I had given up to him that night. . . . After this time, we had intercourse; that is to say, we tried. We tried for a month and a half or maybe two months before we succeeded. After this we discussed the question of marriage; we always were speaking something about it. I told him that I was a virtuous girl and never had done anything of that kind, and I asked him would he know, and he said he would, if I had never had no dealings with no other man, he said he would know, and it would not make any difference with me if I was a virtuous girl; and after the first time I asked him didn't he believe then what I told him, and he said that he did. After this time that we went to the house of his brother, we went several places and met at different places to have intercourse again." She states, however, it was a month and a half or two months before he succeeded in having intercourse with her. She says: "These acts of intercourse continued along on during the year up until along the last of July or the first of August, somewhere along there. I let him have intercourse with me a time or two, after he backed out from marrying me; then I found out that I was in the family-way, and told him that I was going to quit." She further testifies that she and appellant went to see Dr. Holland about the matter, and he told them there was not anything wrong with her and gave her some medicine; that it would do the work. She says that it was on the 4th of February when she learned definitely that she was pregnant. That was in Dr. Bell's office. She had been carried by her mother to see Dr. Bell, who, upon examination of her, ascertained the fact that she was pregnant, and he so informed her. This seems to have been the 4th of February. When Dr. Bell made that announcement she most strenuously denied her pregnancy and said it was not true; that she had not had intercourse with anybody. Prosecutrix's mother was in the room at the time this occurred, and Dr. Bell informed her that her daughter was pregnant. The girl still insisted that it was not true. Dr. Bell asked her mother to step out of the room a moment, that he thought he could make prosecutrix admit it. After further examination of the girl and after discussing the matter with her she admitted she was pregnant, and that she would be confined on the 10th of February, six days from the time Dr. Bell was talking with her. He informed her that was not true, that it would be in the neighborhood of two months before she would give birth to a child. The facts show she gave birth to a child on the 18th of March. Dr. Bell testified further that she had been having intercourse with men recently before his examination of her, going into detail of the reasons why he knew that was true. She had in her testimony before the jury stated that the intercourse ceased between them the last of July or first of August previous to Dr. Bell's examination, admitting, however, she had on one or two occasions subsequently to breaking off the marital agreement between them had intercourse with appellant. It is also in evidence that she was engaged to marry Charley Cross, and she requested Mrs. Smith to make her a wedding dress for that purpose, and she admits in her testimony that she was engaged to him at one time and loved him, and states in her testimony on the trial before the jury that she still loved Charley Cross. Cross was a brother-in-law of Mrs. Smith. Mrs. Smith did not want Cross to marry her and declined to make the wedding dress. Her language in reference to Charley Cross is thus stated in the record: "I told him I loved him. I did love him, and I still love him. I still love Charley Cross. He has been married; he is a widower now. He has never married yet. I told Bernice Staples I loved him." There is quite a lot of testimony also in the record with reference to a damage suit against appellant growing out of this matter, and there seems to have been an impression on the part of prosecutrix and her father that it was necessary to obtain a conviction for the seduction before they could get damages in a civil suit, and especially this seems to have weighed heavily upon the mind of the father. He talked a great deal about the damage suit. He told of instances where parties had obtained damages under similar circumstances, and went to see a lawyer for the purpose of bringing the damage suit. It seems to indicate in the mind of the father of prosecutrix as well as prosecutrix that a conviction was necessary in the seduction case in order to obtain a judgment in the civil proceedings. Recurring to her testimony with reference to the various attempts to have intercourse with her before he succeeded, she stated that before he did succeed that he tried it often, perhaps every two or three days. There is other testimony going to show that other men took liberties with her, such as kissing her and putting their arms around her and matters of that sort, and there is some testimony to the effect that she wanted to get married, and one witness testified he had been going with her; that when he discovered that she wanted to get married, he would not go with her any more, that he did not want to marry, and so informed her.

The testimony is rather voluminous and minute in detail, but I deem it unnecessary to go any further in reference to the evidence. I feel more than justified in the conclusion that the facts stated do not justify a conviction for seduction. To say the least of it, it is rather a remarkable statement that to prove her chastity she would herself propose to her lover such a test of chastity and offer her body as a test of that chastity. It would occur to the average mind that a chaste girl would scarcely volunteer to offer to a man her body to test her virginity or chastity when he was questioning that chastity. Evidently the Charley Cross matter or something had come up between them, as she said it often did, and about which appellant would become violent in his jealous anger and to the extent that he suspected rather intimate relations between them. From her statement he did not demand or ask of her to prove her chastity, but she herself suggested that if he would know whether she was chaste or not she would submit her body as a test. When this offer came he stated he would know, and she says then she insisted upon going in the house of appellant's brother, who was absent from home, and there make a test of the matter. She testifies that he did not succeed nor did he succeed for a month and a half or two months, but they were continually testing the matter under her statement before the act of intercourse was consummated. The proposition came from her — not appellant. As she states it, the conclusion seems to be irresistible that he would not marry her because he suspected her virtue, and that she had been intimate with other men. If her testimony does not carry that conclusion, then it would be difficult to understand what she did mean by her statement. Under this view of it she proposed to submit her body to him as a test of the chastity in order to obtain from him the coveted marriage. This was a condition precedent to the marriage as testified by her. The extent of his satisfaction, as expressed in her testimony, seems to have been of very short duration, and rather of an illusory nature, for she says it continued every two or three days, or at least at frequent intervals for a month and a half or two months, until the final act of intercourse was consummated. She was willing all the time and on all occasions to permit him to have intercourse with her or try to do it. All this was predicated upon the belief on the part of appellant that she was not chaste, and on her part as a condition precedent to the marriage. Her testimony not only fails to prove chastity, but, as I understand it, proves the contrary. It is a peculiar statement to make, or an admission from the prosecutrix, that she was willing to prostitute her body to an unholy intercourse to prove the fact that she was a chaste woman. It occurs to me that such a statement would be abhorrent to a truly virtuous woman. Of course under the statute defining seduction, there could be no seduction if she was unchaste, or if it was upon a conditional promise of marriage, and in no event could there be a seduction until the intercourse had been obtained. It is the act of intercourse under the agreement of marriage of a chaste woman led away from the path of virtue by the accused that constitutes this offense. Conditional promises can not form a basis of seduction. An unchaste woman can not be seduced.

I have written what I have written without undertaking to follow or reply to the opinion of the majority affirming the judgment. I have gone to the record for the conditions as I see them applicable to the case. Without touching other questions in the case I am convinced that this judgment ought to be reversed on the two questions above mentioned.