Nash v. State

RAMSEY, J.

(dissenting).

In that invaluable repository of the common law, Coke’s Commentaries on Littleton, that doughty old knight of the law observes (liber 3, § 378) that: “By reasoning and debating of grave learned men the darkness of igporance is expelled, and by the light of legall reason the right is discerned, and thereupon judgment given according to law, which is the perfection of reason. This is of Littleton here called legi-tima ratio, whereunto no man can attaihe but by long studie, often conference, long experience, and continúan observation. Certaine it is, that in matters of difficultie the more seriously they are debated and argued, the more truely they are resolved, and thereby new inventions justly avoided.”

We, in this case, seemed not to have justified the remarks of the learned author. On the contrary, the more we have consulted about the case, and these consultations have been both frequent and prolonged, the more widely apart have we drifted. The case has now been with us so long that a further delay in disposing of it would be injustice alike to appellant and to the state, and so we find ourselves at the parting of the ways, and since I cannot agree with my Brethren oi-go with them, it must result as it did with Lot and Abraham, in the days of the patriarch, that we shall “separate ourselves the one from the other”; the majority speaking for the court and registering its decree, while I am left in the solitary and inhospitable domain of dissent. I recognize that no dissenting opinion can ever justify itself unless it is right; that even then it is most unavailing unless it has the effect to arrest attention, excite inquiry, provoke discussion, and ultimately lead to the ascertainment of the truth. As to whether I am right in my conclusions, both as to the law and the facts of the case, indeed as to whether I am right on either the law or the facts, will be determined by a generous profession of this and other times, and to this judgment, always in the long run both fair and just, I shall make my appeal. I trust, too, ■ that, however lacking in strength and vigor the opinion may be, it will arrest attention, excite inquiry, provoke discussion, and lead the court back some time to what I conceive to be the ancient and settled truths of the law. I am not unmindful of the respect and confidence with which the judgment of my Associates will be received. My own respect and esteem for them would and should indeed constrain and withhold this opinion except for the certainty I feel that I am right. Thisi opinion so' entertained by me results after weeks and months of examination and re-examination and all the study I can give to any case. With the views thus entertained, I should feel that I had committed treason to my own convictions, and worse than treason to the law which I not only love but am sworn to support and uphold, if I did not dissent.

From my point of view, the conclusion of the majority is not only erroneous, but the result, as I view the result, is most unfortunate, not to say deplorable. It is a judgment and conclusion which I fear must greatly weaken the laws of this state designed to protect the innocence and virtue of our women and punish those who, under promise of marriage, would despoil them. The opinion of the majority concedes that no evidence was improperly admitted for the state, and that none properly receivable in appellant’s behalf was denied him. The opinion concedes that the learned trial court submitted the law, and all the law of this state, in charge to the jury. The opinion is based on the sole proposition that, as a matter of law, under the facts the conviction is without warrant, and decrees, in substance, that appellant must go free. Against this conclusion I enter my dissent, and shall undertake to give at as much length as may seem necessary the reasons upon which that dissent is bottomed.

It would be conceded, I am sure, by my Associates, that the laws of this state which make for the protection of the home should be upheld in all their vigor. Any interpretation of our laws, not in fairness demanded, which would undermine and sap the strength of the law which safeguards the home and its dearest and most important interests, would be worse than the “pestilence that walketh in darkness, or the destruction that wasteth at noon day.” They must recognize, as I do, the truth of the counsel which Laertes gave to Ophelia that:

“The chariest maid is prodigal enough, If she unmask her beauty to the moon.”

And while I recognize that we may not and cannot wholly, in the decisions of this court, instill in the minds of our people those lessons of purity learned at the fireside and strengthened by religious teaching, still, in supplement of these, we can and ought to so administer the law according to its true intent and purport without injustice to any man as to throw proper protection around those whose inexperience and attractiveness point them out as victims of the libertine.

Katie Weddle was a young woman living in the vicinity where appellant resided. Neither her father nor her mother were living. In the spring of 1904, when she first became acquainted with appellant, she was living at his brother’s, Will Nash’s. She and appellant had been sweethearts for about two years, and during all that time she was his companion, and he waited on her. The first act of carnal intercourse, according to her testimony, was had on the last day of June or first of July, 1906. She states: “I submitted to him because he had promised to marry me, and I thought him true, and I loved him, and I thought he would fulfill his promise. He told me that he would marry me if I submitted to him.” She further testifies: That there were two other acts of •intercourse. The second act occurred four weeks from the first; she says that at this time Minnie Nash, appellant’s sister, came to town after her in a buggy, and that she went down to Mr. Nash’s, the father of appellant, and stayed there Saturday night and Sunday night That they went to Mt. Olive to prayer meeting, and that the act of intercourse took place as they were coming back home. The details need not be here set out. The third act of intercourse occurred on the occasion of appellant’s taking prosecu-trix to church, where they went in a wagon most of the way with appellant’s mother and sister and some of the rest of the relatives. It developed as a result of the intercourse that a child, a boy, was born on the 15th day of March, 1907. Soon after this an affidavit was filed against appellant charging him with the offense of seduction, and he fled the country, and remained away about a year. During this time the sheriff of Delta county made a search for him without being able to find him. Numerous witnesses were introduced, all of whom testified that the reputation of Miss Weddle as a chaste and virtuous woman was good. They all testified that the relations between appellant and Katie Weddle were intimate and their association frequent Mrs. Hughley says: “After appellant started there was not any other one kept her company until after I left there; I don’t think I ever saw any one else with her but Bob. They would go out in -society and places of entertainment and church and things of that kind.” George Willis says that during the time appellant associated with her, which covered a period of a year or such matter, and while he was keeping her company, he does not recollect but one other boy keeping her company, and that he went home with her one night from prayer meeting, and that was Ezell Scott; but appellant was with her constantly at entertainments, church and things of that kind; that appellant would be with her nearly every time witness would be at an entertainment or at church or anywhere. Frank Hearne testified that appellant had waited on Miss Weddle something like two' years; that he would see them together at many different places, parties, preaching, and Sunday School, and entertainments of all kinds, such as were in the country. Mrs. Hearne testified that appellant went with Miss Weddle something like two years, and that during this time he was keeping her company she did not remember ever seeing any other young man with her unless it was Ezell Scott; that she would see appellant and Miss Weddle together at church, entertainments, and Sunday School and places of that kind. Ed Elliott testified that appellant kept company with Miss Weddle something like a year or two, and that while he was keeping her company witness did not know of any one else going with her; that he would see them at different places together, at Sunday School, prayer meeting, and parties; that he remembered in the summer of 1906, when a complaint was made against appellant for seduction; that he remembered about the time when Miss Weddle gave birth to a child; that he saw appellant in town one day before this, and they were talking together about a little baseball mit and shoulder, and something was said that he ought to get that for his boy, or something like that was said. He further testified: “I don’t remember exactly how it was, but it was something to that amount.” On cross-examination touching this matter, he testified: “I was ‘joshing’ him about the baby, and there was something said about the mit. I think I brought it up myself. I might have been the one that suggested that he buy one for his boy; I won’t be certain. We was talking, and he said, yes, he ought to buy it.” A number of other witnesses testified to the intimate association between appellant and Miss Weddle, and, without exception, they all stated that her reputation was that of a good, chaste, and virtuous girl, and most of the witnesses testified that appellant’s reputation as a law-abiding citizen was good. Charley Cawley testified that he saw appellant and Miss Weddle together during the summer of 1906; that during this time he was the only one that witness knew of that kept her company; that witness remembered when she came to town and stayed awhile, and when she went back out in the country, and appellant was still going with her after she came back out in the country. There is some little evidence that, for a month or two before the act of intercourse, there had been some cessation of appellant’s attentions; but these were renewed something like a week or 10 days before the act of intercourse. The only attempt to contradict Miss Weddle was by a witness who testified that prosecutrix said to the witness during the year (time not given) that, if she could not get Bob Nash one way, she would another; that this was before she went to Paris. This was denied by prosecutrix. This witness testified that during all the time that she knew the parties that only one other person had gone with Miss Weddle, and that he went with her one time, and that during the summer months of 1906, June and July, and throughout the summer, appellant and the young lady were together frequently. The testimony of the prosecutrix to the intercourse, to her age, and to the promise of marriage, and her reliance thereon, and indeed to all the essentials of the offense, is clear, positive, and convincing.

The only question raised on these facts is as to whether the corroboration is sufficient as to the promise of marriage and the intercourse, and the opinion of the majority can only be justified and sustained on the ground that the corroboration by the testimony of other witnesses is indispensable in respect to the promise of marriage and the act of intercourse, and that, this being true, the evidence of corroboration in respect to these matters is not sufficient. In determining the sufficiency of the evidence on appeal, we must assume as true not only every fact distinctly proven, but those inferences and conclusions of fact which in fairness the jury could draw from facts directly and positively established. It can no longer be doubted that it is the law that both the act of intercourse and the promise of marriage can be established by circumstantial evidence. No lawyer can, as I conceive, give any reason why the law of circumstantial, evidence should not apply in cases of seduction as well as in cases of murder or theft. In the case of Beeson v. State, 130 S. W. 1006, the court below instructed the jury, among other things, as follows: “You are, however, instructed that corroborative evidence need not be direct and positive independent of the prosecutrix, Miss Edna Blackshear; but such facts and circumstances as tend to support-her testimony, and which satisfy the jury that she is worthy of credit as to the facts essential to constitute the offense of seduction as hereinbefore defined to you, will fulfill the requirements of the law as to corroboration, and it is for you to say from all the facts and circumstances in evidence before you whether she has been sufficiently corroborated.” This instruction was sustained and held correct in a very able opinion by Judge Cobb sitting as special judge with Presiding Judge Davidson and myself, Judge McCord not sitting, and is conclusive on the proposition that the evidence of corroboration may be circumstantial. That matter then may be considered as settled.

There are in our Code of Criminal Procedure of 1895 two provisions, in cases of seduction, touching the matter of corroboration of the testimony of the party wronged, who, in the eyes of the law, is treated as an accomplice. Article 781, which is general in its character, is as follows: “A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.” Article 769 of the Code of Criminal Procedure, having special reference to the testimony of a woman seduced, is to this effect: “In prosecutions for seduction, under the provisions of the Penal Code, the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon the testimony of the said female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged.” I think it probable that the last-named article was intended to institute a somewhat different rule in seduction cases. This, however, may not be quite clear, and it is unnecessary to express a definite conclusion on it. Whether this construction is true or not, in my opinion, under either article the testimony is abundantly sufficient, and we are not justified under the evidence in. concluding otherwise than that the testimony of this woman was corroborated, was confirmed, and was and is true. It is not required, I think, that the corroboration should extend to every essential element of the offense. Article 967 of our Penal Code of 1895, which defines “seduction,” is in this language: “If any person by promise of marriage shall seduce an unmarried female under the age of 25 years, and shall have carnal knowledge of such female, he shall be punished by imprisonment in the penitentiary not less than two, nor more than five, years, or by a fine not exceeding five thousand dollars.” This statute has been construed, and properly so, to apply only to a woman previously chaste. Therefore, in order to establish the crime of seduction, four things must be shown: First, that the person claimed to be seduced is an unmarried female under the age of 25 years; second, that she is chaste; third, that she submitted to carnal intercourse with the person charged; and, fourth, that this intercourse was obtained by promise to marry upon which the prosecutrix relied.

Now, while there are many loose expressions in the books to the effect, in substance, that the prosecutrix must be corroborated both in respect to the act of intercourse and the promise of marriage, this is not the law, and never was the law. The statute no more requires corroboration in respect to the act of intercourse or to the promise of marriage than it does in respect to the age of prose-cutrix, or to her previous chaste character. That it is not essential that corroboration shall exist in respect to every ingredient and essential of the offense was distinctly held by Judge McCord in one of -the ablest in many of the excellent opinions rendered by him. In the case of Williams v. State, 128 S. W. 1121, in language of admirable clearness, he thus disposes of the contention by appellant that there had been no corroboration in respect to one of the essential facts required to be shown, to wit, that the prose-cutrix was under 25 years of age: “It is also contended that there is not sufficient corroboration in the case. It is admitted that the prosecutrix was corroborated on the question of promise of marriage and intercourse. She testified that she was 18 years of age. It is insisted before this court that, because there was no testimony corroborating her upon this point, therefore the conviction cannot stand. We do not agree to this contention. All crimes have in them different issues and different elements that are required to be proved in order to sustain a conviction. The statute is general that the accomplice must be corroborated by other testimony tending to connect the defendant with the commission of the offense. The statute does not say in what this corroboration shall consist. If the testimony other • than that of the accomplice should make out a complete offense, it would not be necessary to use the accomplice’s testimony. Hence the law wisely provided that the corroboration must tend to connect the defendant with the commission of the offense, and to require that every constituent element of the offense as sworn to by the accomplice must be corroborated would be requiring of the state an impossibility.” This decision is in harmony with the law everywhere except as it has been interpreted in some of the expressions of this court. Among the clearest statements of the rule on this subject I have found is contained in Am. & Eng. Ene. of Law & Prae., vol. 1, p. 583, where it is said: “The testimony of the accomplice need not be corroborated on every material fact, so that, independent of his testimony, a conviction would be authorized, as this would in effect deny to the testimony of an accomplice all value.” Among other cases cited as supporting the text are the cases of Myers v. State, 7 Tex. App. 640; Nourse v. State, 2 Tex. App. 304; Davis v. State, 2 Tex. App. 588; Hoyle v. State, 4 Tex. App. 239; Jones v. State, 4 Tex. App. 529; and Wright v. State, 47 Tex. Cr. R. 433, 84 S. W. 593.

Looking to the decisions of the courts elsewhere, we find the following admirable statement in respect to a statute almost identical with our own. In the case of State v. Lawlor, 28 Minn. 216, 9 N. W. 698, the court said: “The statute respecting the use of the testimony of an accomplice is as follows: ‘A conviction cannot be had upon the testimony of an accomplice, unless he is corroborated by such other evidence as tends to convict the defendant of the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.’ Gen. St. 1878, c. 73, § 104. We think a reasonable construction of this section does not require a case to be made out against the prisoner sufficient for his conviction before the testimony of an accomplice can be considered, for that would make it available only when its necessity did not exist; neither do the terms used require such an interpretation. The corroborating evidence must, independently of the testimony of the accomplice, tend in some degree to establish the guilt of the accused, but need not be sufficiently weighty or full, as, standing alone, to justify a conviction. We have met with no ease coming under the common law or statutory law in which full proof was required by way of corroborating evidence.” '

In the case of Myers v. State, supra, which is a murder ease where the penalty of death was inflicted, and which was affirmed by this court, Judge Winkler, who delivered the opinion, said: “The authorities are not agreed as to the amount and extent of corroboration required in order to warrant a conviction on the testimony of an accomplice who, in the sense of a witness, is any direct participant in the crime; but with this we need have no concern, for the reason that' the statute has settled it by declaring the extent of the corroboration necessary. It is ‘other evidence tending to connect the defendant with the offense committed.’ We do not understand that this requires that the different matters testified to by the accomplice are to be supported, each one, by the other testimony to the same isolated facts, but that it must tend to connect the defendant with the offense committed.”

In the more recent case of Criner v. State, 53 Tex. Cr. R. 174, 109 S. W. 128, in which 1 wrote the opinion for the court, we said: “We have set out the testimony at this considerable length and have stated practically the testimony tending to connect appellant with the burglary. The rule is, of course, well settled that, before a conviction can be had upon the testimony of an accomplice, there must be other proof tending to connect the person charged with the commission of the offense. Just how strong, in every case, this corroborating testimony shall be, must depend to a large extent upon the facts of each particular case. We believe that, while not strong, it could not in fairness be said that there was no corroborating testimony, or that it was so weak, indefinite, or immaterial as to justify us in holding, in view of the verdict of the jury, that it was wholly lacking.”

In the case of Cohea v. State, 11 Tex. App. 622, in which Judge Hurt delivered the opinion, it is said: “As we have before held, the evidence of the other witnesses need not corroborate some particular fact testified to by the accomplice, but it must tend to establish the guilt of the defendant.”

The rule announced in the case of Myer v. State, supra, is in harmony with the decisions of this court in the case of Jackson v. State, 4 Tex. App. 293, and Hoyle v. State, 4 Tex. App. 239, to the effect that it is not essential that the corroborative evidence should corroborate the accomplice’s testimony substantially and in detail. It has likewise been held that it is not essential that the corroborative evidence should suffice of itself to establish the guilt of the accused, and in that event it is said the testimony of the accomplice would not be needed. Nourse v. State, 2 Tex. App. 304. In that case Judge Ector, speaking for the court, says: “It will be seen that, to justify a conviction on the testimony of an accomplice, there must be some evidence which, of itself and without the testimony of the accomplice, tends in some degree to connect the accused with the commission of the crime. The Supreme Court of California (in the case of People v. Melvane, 39 Cal. 614) say: ‘The corroborative evidence may be slight and entitled to but little consideration; nevertheless, the requirements of the statute are fully fulfilled if there be any corroborating evidence which of itself tends to connect the accused with the commission of the offense.’ This decision was rendered under a statute very similar to ours in regard to the corroboration necessary to be had to the testimony of an accomplice to support a conviction. Article 375 of the Code of California is as follows: ‘A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense, and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof. It is a mistaken idea to suppose that the corroborating evidence must conclusively of itself connect the defendant with the commission of the offense. If so, there would be no use for the testimony of the accomplice.”

One of the best, clearest, and most lucid statements of the rule to be found in the books is that of Judge Simkins in the case of Wright v. State, 31 Tex. Cr. R. 354, 20 S. W. 756, 37 Am. St. Rep. 822. This case, too, is particularly valuable since it was referred to with approval by Judge Cobb in his opinion in the case of Beeson v. State, supra, rendered no longer ago than the 22d day of June of the present year, as will be seen by the above quotation from the Beeson opinion. There Judge Simkins says: “As to the sufficiency of the testimony, we think the witness is amply corroborated as to the promise of marriage and the illicit intercourse. Corroborative evidence need not be direct and positive, or such evidence as is sufficient to convict, independent of that of the prosecutrix, but simply such facts or circumstances as tend to support her testimony, and shall satisfy the jury she is worthy of credit. And, when there is other testimony fairly tending to support the prosecutrix upon facts essential to constitute the offense, it is for the jury to say whether she is corroborated. State v. Timmens, 4 Minn. 325 (Gil. 241). She testified she yielded to defendant because he faithfully promised to marry her. The witnesses prove that the young lady was highly esteemed, and visited by other young gentlemen, and moved in the best social circles, with a good reputation for chastity and virtue; that he was received by heir family as a suitor, and was so persistent in his attentions that all other gentlemen were compelled to cease attendance. His letters breathe undying affection and strong jealousy, and speak of their marriage in the future as a certainty. We think the evidence is amply sufficient to sustain proof of seduction.”

However, under any rule ever announced by this court, I think a careful study of the record must carry conviction that the testimony of corroboration is sufficient. Of course, in so applying the testimony we must have some reference to the nature of the case, the situation of the parties, their station in life, and the opportunities for securing testimony in corroboration of the pros-ecutrix. In so doing we should also have some regard to the character of the offense, the situation of the parties, and what we know, and what the jury and the trial court knew of human nature and the relation of the sexes. We should also remember that accomplices, like angels, differ not in glory, but in blame. In this case the prosecutrix is in law called an accomplice, and in a certain sense her testimony suffers the same legal disparagement as that of a burglar, a thief, or an assassin who has turned state’s evidence, and the law requires that, before a conviction can be had on her testimony, there must be evidence other than her own tending to connect appellant with the crime, and yet we know that many a woman who has fallen is, as to other men, wholly virtuous, and that many women who have gone astray under such circumstances as this young girl did might, by evidences of deep contrition, thorough repentance, and other evidences of truthfulness, prove as convincing in her testimony as that of any witness whose hand was ever lifted in a courthouse. To the jury hearing this case, and to the court sitting on the bench as a just arbiter between the state and the defendant, this case -was committed (subject only to the provision of law that there must be other evidence tending to connect appellant with the crime charged), and the weight to be given to her testimony was for them to determine. It may well be that her demeanor on the stand shadowed forth such clear-eyed and white-souled truthfulness as that they were so thoroughly convinced and so deeply impressed that to them her word, like Caesar’s, “might have stood against the world.” The weight to be given to her testimony was, of course, for the jury. The only limitation placed upon their action in regard to what credit they would give to her evidence is the rule that other testimony must be produced which shall tend to corroborate her. The quantum of it will differ in accordance with the character of the witness and the facts' of the particular case. In respect to an adventuress whose air and demeanor upon the witness stand might disclose her true character, a jury might well hesitate to convict, though supported by abundant circumstances of corroboration. Whether in any given ease they shall or do believe the accomplice is wisely by law committed to them.

In this case the evidence shows that, when the parties first became acquainted, the pros-ecutrix, who, it seems, was a woman of rather an humble station, and an orphan girl, was living with the brother of appellant. It is not denied, and indeed seems to be conceded, and was indubitably proved on the trial, that she was a woman of blameless life and unsullied reputation. The evidence shows that, at the very time the intercourse between herself and appellant was being indulged in, she was received as a welcome guest at the hearthstone and around the fireside of his father and mother. She is shown to have been the associate and companion of his sister, and was by her, under this evidence, treated as an equal. That some one accomplished her ruin is, of course, certain. As stated, the evidence shows that the prosecutrix had neither father nor mother. Except that her heart belonged to another, she was mistress of her own fortunes and her own destiny. Therefore there was no opportunity for the state to furnish testimony of either father or mother that the daughter had been sought in marriage by her suitor. The fact that she was alone in the world furnishes, too, some reason why the engagement should not be published, or the fact of the engagement communicated to her relatives. The jury knew, too, as we know, and as sensible men must here assume, that they took cognizance of the well-known fact that frequently, if not indeed usually, such engagements are kept secret, and not disclosed until the wishes of the woman and the affairs of the man make it possible to early realize the hopes of the contracting parties. From these and other facts the jury might well find the promise of marriage, and not to believe same, in view of the character of the woman, the intimate association of the parties, was to close their eyes to the experience of the ages. There is no hint or suggestion in the evidence that she had such relations with' any other person as would have made it among the possibilities for such other person to have secured her confidence, corrupted her mind, and wrought her ruin. Indeed, the testimony clearly shows that so secure was appellant in her affections and so thoroughly had he outstripped the rivals for her heart that they had dropped out of the race and left him undisturbed. The evidence clearly shows a general recognition among their acquaintances and friends of a relation more than that of merely passing acquaintances. In addition to this, as soon as the complaint was filed against appellant for seduction, he flees the country, and is gone for a year. When her condition becomes known, and in jest some reference is made to his buying a gift for his boy, he falls in with the suggestion and says yes, probably he had better buy it. There is no suggestion of disavowal of this responsibility, when, if he had been innocent of the transaction, every suggestion of self-preservation would have demanded and would certainly have induced a'disavowal. It was a situation which from an honorable man, guiltless of any wrong, would have instinctively drawn such a disavowal. In view of their long and intimate association, it is passing strange that if not guilty and not cognizant of her condition, and not responsible therefor, no incredulity was expressed that she should have so fallen, nor pity for her sad state. On the contrary, her situation was treated as a matter of jest and idle sport. His conduct was only consistent with the conduct of one who had enjoyed her youth and beauty, and, when the evidence of her downfall was at hand, had treated it and her situation as a matter of jest and idle sport. Would not any jury of 12 men find corroboration in their intimate association? Can we say they did not? Would they not find corroboration in his practical admission of the paternity of the child? Shall we say they must not? Would they not find corroboration in the fact that she had no other male acquaintance -whose relations with her were at all intimate? Would they not above all find corroboration in her blameless life and pure character, her accepted state as a friend of the family, a guest of the home, and an associate of appellant’s sister, and be slow to believe that any woman, such as prosecutrix is shown to have been, would have surrendered her person on any other condition except in the belief that it was to her afiianeed husband? Again, would not the jury find corroboration in appellant’s flight? If he was not guilty, why, as against this young girl without a family, should he flee, and if, having sought flight, and was yet not guilty, why should he avoid arrest and remain away a year? These facts, as I believe, constitute corroboration and ample corroboration not only in respect to the intercourse, but in respect to the promise of marriage. So far from the verdict being unsupported by any testimony of corroboration which, in order to reverse the case, we must hold, from my point of view, no other conclusion is fairly inferable from the testimony except that appellant is guilty. We know that good and pure women, such as this woman was ere she was tempted and fell, do not yield to a casual acquaintance, and where, as in this case, we find a young man, her sole companion and associate, practically admitting the paternity of the child, in the light of all the other attendant circumstances, and having in mind the scriptural evidence “that the guilty as the wicked flee when no man pursueth,” I cannot hesitate to believe that he was guilty of the downfall of this young woman, and, applying the safe and sane rules as judges that we would not hesitate to apply as men, I think we should hold, as I firmly believe, that the corroboration is sufficient, and the verdict abundantly supported by the evidence, and should not, in this condition of the record, undo the work of a jury properly impaneled, properly charged, and which has received the verdict and approval of a district judge of large experience on the bench. For my part, I can never consent to the institution of such a rule. I can never consent to a holding which determines, in substance, that a jury cannot find from circumstances the fact of a promise of marriage when this fact is, as I believe in this record abundantly, if not conclusively, established. Let it ever be understood that in all that I have written, while all is in sorrow and regret, that not one word is to be understood in disparagement of or as reflection upon my Associates. I accord to them the same- singleness of purpose and the same honesty of opinion that I claim for myself.

It may be that I attach too much importance to the work and the opinions of this court and its high office. I would have it always to be the great tribunal which the Constitution ordained and provided it should be — an asylum for the oppressed whose rights have been invaded, and a safe harbor for the innocent improperly convicted, but at the same time furnishing ever and always an anchor both true and steadfast, holding securely the fundamentals of our Constitution and preserving the peace of society and the well-being of our citizenship.

I have felt so great an interest in the question that I have at this great and perhaps unnecessary length written my views in the hope that, like bread cast upon the waters, it may be returned to me after many days.

For these reasons I respectfully enter my dissent, in the hope that in some future and in some better day the views here expressed will come to be recognized as the law of this state.