Kennedy v. State , 104 Tex. Crim. 152 ( 1925 )

The State insists, in support of its motion for rehearing, that we erred in holding the testimony insufficient to corroborate prosecutrix on the point of appellant having obtained carnal knowledge of her by a promise to marry her. We have again carefully reviewed the testimony in the light of the State's motion. Only three witnesses testified for the State. The mother of prosecutrix and a witness named Newton were relied on to supply the corroborating testimony. The only thing appearing in the testimony of the mother of prosecutrix in anywise corroborative of the proposition of a promise to marry, appears in the statement made by the witness to the effect that appellant called up her daughter on one occasion, and finding that the daughter was not at home, asked witness to tell prosecutrix for him that he was leaving and that he would do all he could for her. The mother said that she knew nothing of appellant keeping company with prosecutrix except by what the prosecutrix told her. This witness on redirect examination by the State further testified that appellant and one Richard Kennedy came to her house about six weeks before the trial of the case and said they came to settle the business, wanted to settle it in money matters, and that she refused to settle it, telling them that it was in the court's hands. The conversation was had mainly with Richard Kennedy.

The witness, Newton, testified for the State that something like six weeks before the trial he talked to appellant in the district attorney's office and appellant said that he went out to talk to prosecutrix for the purpose of settling this case and that he had offered her some money and wanted to settle it out of court. This appears to be all of the corroborating testimony and we confess our inability to see how it can be compared with the case of Klepper v. State, 223 S.W. Rep., 469, cited by the State in its motion as authority. We have no doubt of the correctness of the statement in Sec. 200 of Underhill on Criminal Evidence to the effect that any statement or conduct of a person indicating a consciousness of guilt, where he is charged with or suspected of crime, is admissible as a circumstance against him on his trial; and the fact that he offers to pay money to stifle the investigation or prosecution is mentioned as such circumstance. It seems to have been laid down uniformly by this court that there must be corroboration of the prosecutrix both as to the fact of carnal knowledge, and also of the fact that same was obtained by a promise to marry. It would require no argument at our hands to make plain the proposition that it would be utterly impossible to say that the offer of money by Richard Kennedy, the uncle of appellant, even if attributable to appellant who was present, would amount to corroboration of either element of the offense, corroboration of which is necessary.

We believe the matter correctly decided in the original opinion, and the motion for rehearing by the State will be overruled.

Overruled.