Hart v. State , 76 Tex. Crim. 339 ( 1915 )

Appellant was convicted of seduction and his punishment assessed at two years confinement in the penitentiary.

Appellant insists that the testimony of Sallie Barree, who testified to facts which would show seduction, if believed, is unworthy of belief, and that the testimony of A.F. Hill, who testified that appellant admitted to him that he had had intercourse with the girl and that he had promised to marry her, is likewise unworthy of belief. The jury under our law is the judge of the credibility of the witnesses. It is only in those cases where the testimony offered in behalf of the State, if true, does not make a case, we are authorized to set aside the verdict on account of the insufficiency of the testimony. The fact that we, if members of the jury, might or might not have found otherwise than the jury did find, does not authorize us to substitute our judgment for that of the judges of the facts under our law. Of course, if the testimony was unreasonable, or such that the average person could not and would not accept, we would be authorized to interfere. But where the testimony offered by the State is clear and explicit, and if believed authorizes a conviction, we cannot substitute our opinion of the facts for that of the twelve men sworn to pass on the evidence.

In two instances witnesses who swore that the reputation of Sallie Barree in the community where she lived for virtue and chastity was bad, the appellant desired to ask them if they had heard rumors in the community that the prosecutrix had had a miscarriage. When the witnesses had testified that her reputation for virtue and chastity was bad, this was as far as appellant, under the law, is permitted to go. He can not elicit testimony of isolated facts upon which such reputation is based. The opposite party may go into these matters on cross-examination, but the person who introduces the witnesses is not permitted to do so on direct examination. Appellant's able attorneys earnestly insist that this testimony should have been admitted to support their testimony that her reputation for virtue and chastity was bad, but they cite no authorities in support of their contention. On the other hand, the rule has always been in conformity with the holding of the court in this case. In Forrester v. State,38 Tex. Crim. 245, it is held: "On the examination in chief the general rule is thus stated: On direct examination of a witness introduced to prove the character or general reputation, ``the evidence must be confined to general reputation; and no evidence is allowed of particular acts of good or bad conduct either to sustain or impeach character. To thoroughly comprehend the scope of this rule, we must understand the reasons upon which it is founded, which are the following: (1) Every person is supposed to be capable at any time of sustaining his general reputation; but it would be unreasonable to expect anyone to be prepared, without special notice, to answer an assault on his character, imputed by particular acts of bad conduct. (2) To allow such evidence, moreover, would lead to the mischief of raising any number of collateral issues, the trial of which might be almost interminable, and otherwise objectionable; as diverting the mind of the jury from the main issue.' See 3 Rice on Crim. Ev., sec. 376, and authorities there cited; Boon v. Weathered, 23 Tex. 675 [23 Tex. 675]."

Again in several bills it is shown that appellant's witnesses were not permitted to testify that "appellant had told them (the witnesses) of certain statements which he claimed Miss Barree had told him." The State had not sought to impeach appellant's reputation for truth and veracity — there was just a direct conflict between his testimony and that of Miss Barree. What Miss Barree may have told him could be testified to by appellant, but others could not be called to testify what appellant told them Miss Barree had said. This would be hearsay pure and simple.

The court gave all the special charges requested by appellant except one, and in that he requested the court to charge the jury, "if you believe from the evidence that the defendant did engage himself to marry her (Sallie Barree) but he afterwards discovered that the prosecutrix had intercourse with other male persons, then he would not be compelled to marry her, and could not be prosecuted or convicted on a charge of seduction." The court did instruct the jury, at the request of appellant: "I charge you that before you can convict the defendant the State must prove beyond a reasonable doubt that Sallie Barree, the prosecutrix, was a virgin, and that she had never had sexual intercourse with a man at, or prior to the first day of September, 1913, and if you have a reasonable doubt as to whether the State has proved this fact you will find the defendant not guilty." Also at the instance of appellant: "I charge you further that if you believe that the prosecutrix, Sallie Barree, prior to the 1st of September, 1913, had carnal intercourse with the defendant or any other male person you will find the defendant not guilty."

The prosecutrix in her testimony says the engagement took place in June, 1913, and thereafter on or about the first of September, 1913, the first act of intercourse occurred. Among other defenses made by appellant was that he and others had had carnal knowledge of the prosecutrix prior to this time. It is seen that the court not only in his main charge submitted that issue to the jury, but gave the two special charges requested by appellant. He did not err in refusing to give the third special charge from which the above excerpt is copied, for if Miss Barree was a virgin, and appellant led her astray under a promise of marriage, the crime was then committed, and although she might afterwards submit to others, this would be no defense to the crime already committed by appellant. But we might say in this connection, there is no evidence that she after September 1, 1913, ever submitted to any other person than appellant.

Appellant by two of his brothers, and by two other witnesses whose families were united by marriage to appellant, made a severe assault on the reputation of the prosecutrix for chastity. They not only testify to her bad reputation, but also testify they themselves had had carnal knowledge of her. This she most emphatically denied and the jury find she told the truth. Her testimony on essential features is corroborated by Mr. Hill, and no error in the record being pointed out in the bills of exception or the motion for a new trial, the judgment is affirmed.

Affirmed.

[Rehearing denied April 21, 1915. — Reporter.]