Barnes v. State , 37 Tex. Crim. 320 ( 1897 )

Appellant was convicted of seduction, and his punishment assessed at confinement in the penitentiary for three years; hence this appeal. On cross-examination of the prosecutrix, the defendant offered to prove that, in the act of intercourse between herself and defendant on the occasion of her seduction, she adjusted her person in order to accommodate and assist defendant in said act of intercourse; and also desired further to prove by said witness that in this first act of intercourse her private parts were not bruised or injured, and that she was not rendered sore or stiff, or in any wise discomforted physically, by any injury or soreness from said first act of intercourse; and questions for the purpose of eliciting said testimony were propounded to said witness by defendant's counsel. The bill of exceptions shows, that, to the first question above asked, the court stopped defendant's counsel, and stated he would not permit further inquiry as to the position of the parties, and would not permit the witness to answer. Thereupon the other questions were asked said witness by defendant's counsel, and the court refused to permit the witness to answer or defendant's counsel to state what was expected to be elicited thereby or proved by the witness in answer thereto; and the court refused to permit any further questions to be asked said witness touching said issues and matters desired to be proved as aforesaid. The defendant then stated that he had other questions that he desired to ask said witness relating to the same matter. The court, in reply, stated: "The court declines to permit you to ask questions of that kind." The defendant then asked the court if he would be permitted to state in his bill of exceptions the questions he desired to ask, and what he expected to prove; and the court stated that he did not think the questions or answers on that subject had anything to do with the case, and would not permit further questions to be stated in the bill, nor anything further about the matter, touching said issue. Defendant reserved his exceptions to the remarks of the court in the presence and hearing of the jury, and the rulings and action of the court above referred to were also excepted to. Defendant insisted that said matters were pertinent to the issues involved in this case, to show that said act of intercourse was upon lust on the part of the prosecutrix, and as tending to show that the prosecutrix was not virtuous and chaste at the time of the alleged seduction. In the court's approval of this bill, reference is made to the whole examination of the witness on the matters involved in this bill. We have examined the testimony of said witness carefully, and fail to find any testimony of the prosecutrix regarding the adjustment of her person so as to respond to the defendant in the act of intercourse, and fail to find any testimony on her part in regard to whether her parts were injured or made to bleed, or that she was hurt or suffered pain in the act of copulation. With regard to that portion of the testimony desired to be elicited from her as to the adjustment of her person, dress, etc., we see no error in the action of the court as to this matter. The act of seduction apprehends consent on the part of the female, and that she adjusted her person in response to the desires of defendant would be in harmony with seduction, and the testimony on this point was absolutely immaterial. However, the defendant also proposed to ask the witness the question above referred to, as to whether her parts were bruised or rendered sore by said act of sexual intercourse, and if there was any blood on her person, etc., and the court refused to permit the witness to answer said question, or allow defendant's counsel to state what was expected to be elicited thereby, or proved by the witness in answer thereto. It occurs to us that this is a most extraordinary proceeding. If such a course is authorized, it would be impossible for defendant to conduct his case in accordance with the well-recognized rules of procedure in this regard. The question was pertinent and legitimate; that is, if it was intended to be shown by the defendant, in asking said question, that no pain was inflicted on the person of the prosecutrix and that by reason of said act of intercourse no laceration was produced or blood ensued. In the first act of copulation between a virgin and an adult male person, these are the natural and ordinary results. While they may not attend every case, yet such cases are exceptional, and not the rule; and proof that such was not the case in this instance was legitimate, testimony, as going to show that she was not a chaste virgin, as she asserted in her testimony, and so was not the subject of seduction. But as stated, we are not informed that this was the character of proof that the defendant proposed to elicit from this witness His statement of the nature of the testimony that would be drawn out in this cross-examination was forestalled by the action of the court. He was not permitted even to state what he expected to prove. The question being calculated to elicit an answer which might have been favorable to the defendant, we will presume, when he was denied all right to state the object or the expected answer, that he expected to prove by said witness in the cross-examination that her parts were not lacerated or bruised, and that there was no blood on her person, privates, or undergarments, produced by this first act of copulation. Upon cross-examination, prosecutrix, Annie Hamlet, testified "that on the first occasion in which he had carnal knowledge of me the weather was warm. He moved my dress out of the way. He laid me down on the grass. He took hold of me, and I remonstrated with him. I was afraid of him, and he promised to marry me. He never did get my full and free consent. I would not have done it, had I not been afraid of him." On re-examination of this witness, over the objection of counsel for defendant, the County Attorney asked these questions: "You submitted to him, because he promised to marry you? You state that because you loved him, and because he promised to marry you, and because you were afraid of him?" The witness answered all of these questions: "Yes, sir; and because I was afraid of him, and would not have yielded but for the promise of marriage, and because I was afraid of him." Her testimony upon cross-examination eliminated from this case the crime of seduction. It was a crushing blow to the prosecution. Now, in attempting to reinstate the case before the jury, these leading questions were permitted to be asked. Counsel for appellant objected because they were leading. The court should have sustained the objection. The witness, however, never did so qualify her testimony as to eliminate fear from the case. On this phase of the case, as presented by the examination of the prosecutrix as above shown, appellant requested the court to give the following special instructions, to-wit: "If you find that Annie Hamlet submitted to carnal intercourse with the defendant, and that she was moved to such intercourse by fear or lust, or conditional promise of marriage, you will acquit, as the female charged to be seduced must rely alone upon an absolute promise of marriage, and be induced by that and in reliance thereon alone." The court eliminated a portion of said requested charge by marking a part thereof with his pen, leaving the charge reading as follows: "If you find that Annie Hamlet submitted to carnal intercourse with the defendant, and that she was moved to such intercourse by fear or lust, you will acquit." As to the conditional promise of marriage imputed in said requested charge, we do not believe there is anything in the record to raise this issue. An examination thereof will rather suggest that the condition stated, that he would marry her when he got out of his trouble (alluding to a criminal matter then pending against him in the courts and his pending trial therefor), was stated by the prosecutrix rather as setting the time when their engagement should be fulfilled and the marriage take place than otherwise. We do not take it from her testimony that this condition was stated or entered into the original promise. Even if it had been, such a condition stated would be reasonable, and would not render the promise void, and his marriage with another would put it out of his power to consummate an engagement entered into by him. But we do believe, under the peculiar facts and circumstances of this case, that appellant had a right to have the court give, in some shape, the substance of his special charge to the effect that, before the jury would be authorized to convict, they must believe from the evidence beyond a reasonable doubt, that the prosecutrix relied alone upon the promise of marriage in consenting to the act of carnal intercourse, and that she was not actuated thereto on account of some other consideration, such as fear or lust. While the court told the jury in its general charge that they must believe that Annie Hamlet was induced to agree to the act of carnal intercourse with the defendant upon his promise to marry her; and while the court gave a portion of said special charge to the effect that if they believed she was moved to such intercourse by fear or lust they would acquit the defendant, yet the jury were nowhere told that she must have yielded alone upon the promise of marriage, and they were nowhere told that if she was moved to such intercourse partly by a promise of marriage and partly by fear or lust they would acquit. The evidence, as above stated, brought this question directly to the attention of the court, and was the real issue in the case; and the special charge asked, or one embodying the essential features thereof, should have been given to the jury; the rule being, in the language of Judge Moore, as stated in Cole v. State, 40 Tex. 147: "The promise of marriage is the important element in the definition of the statutory offense, and it must appear that the female alleged to have been seduced yielded alone to the solicitation of the other party in consideration of his promise to marry her." See, also, State v. Lewis, 48 Iowa 578. The court gave the following charge to the jury, which is assigned as error: "The evidence, if any, of the pregnancy of Annie Hamlet, and of the child, birth, color of the child's eyes, hair and complexion, was only permitted to go before you to aid in determining whether or not defendant had carnal knowledge of Annie Hamlet; and you will not consider such evidence for any other purpose." Appellant insists that this charge was upon the weight of the evidence, and singled out this fact, and gave it an undue weight, as to the fatherhood of the child by the defendant, which must have resulted from carnal intercourse between the prosecutrix and the defendant, etc. And, furthermore, under such charge, the jury were authorized to consider such evidence, and from their observation of the defendant and his personal appearance determine the paternity of the child, and the effect of said charge was to so instruct the jury, and to authorize them to compare the features of the child with defendant then on trial, no evidence of his personal appearance being introduced. The authorities differ as to whether proof of this character can be made as a circumstance to show the paternity of the child. See, 21 Amer. and Eng. Ency. of Law, p. 1033. In this case, however, no proof was made as to the features, complexion, color of hair or eyes, etc., of the defendant on trial, and whatever benefit the jury might derive from an observation of the defendant is not brought into the record. We are of opinion that such proof, as in this case, of a child only three or four months old, is not admissible for the purpose of comparison in order to establish paternity. Even if it were admissible, and proof had been offered as to the complexion, features, etc., of the defendant, the charge of the court was erroneous, in calling attention to a particular part of the testimony that could be used by the jury for no other purpose than to show paternity, and thus give it undue weight with the jury. There are other assignments in the record, but we do not deem it necessary to discuss them. For the errors discussed the judgment is reversed, and the cause remanded.

Reversed and Remanded.