Gleason v. State

This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing in which he assigns five grounds in which he thinks the court erred in the original opinion, conceding that the court was perhaps correct in passing on the other propositions presented. Owing to the earnest insistence of appellant's counsel we have again reviewed the five questions presented.

The first contention is that the evidence of the young lady would not make a case of seduction, but shows a case of barter and sale. Her testimony on direct examination is copied in full in the original opinion, and we think it shows a case of seduction and not barter and sale, and would justify a conviction if corroborated.

The next contention is that the court erred in holding that the testimony of the prosecuting witness could be supported by the testimony of her mother and sister If appellant had made no attack on the witness, his contention would be sound, but it has always been the rule in this court that if defendant's case is that the witness testified under corrupt motives, or where it is sought to show that the testimony is of recent fabrication, State may sustain witness by proof of similar statements in harmony with her testimony, made before any motive existed to testify falsely. (English v. State, 34 Tex.Crim. Rep.; Reddick v. State, 35 Tex.Crim. Rep.; Mitchell v. State,36 Tex. Crim. 278; Williams v. State, 24 Texas Crim. App., 637; Jones v. State, 38 Tex.Crim. Rep.; Ballow v. State,42 Tex. Crim. 263.) Appellant certainly can not contend that he was not endeavoring to show that the additional testimony she gave on this trial to what she had given on the former trial was not of recent fabrication; and can not contend that he was not insisting that it was conceived by her after a conference with attorneys representing the State. And certainly this was the purpose of appellant introducing, in rebuttal of her testimony on this trial, her testimony given at the former trial, and that she had made contradictory statements. Certainly under such circumstances the State could support its witness by showing that she had made statements prior to the institution of this prosecution in conformity with her testimony on this trial. It was not permitting a conviction by allowing her to corroborate herself, but such testimony was admissible to aid the jury in determining whether or not she was speaking the truth on this trial. The court in his charge instructed the jury that "the witness Maggie Davis could not corroborate herself."

The next contention is that we erred in holding that the testimony of Walter Hamilton corroborated the prosecuting witness both as to promise of marriage and sexual intercourse. Appellant concedes that the testimony of this witness does corroborate the prosecutrix as to an act of intercourse, but earnestly insists that it does not corroborate her as to a promise of marriage. We have again read this witness' testimony, and while the witness does not use the words "he told me he promised to marry her," yet no other deduction could be drawn from the testimony of the witness.

He insists we erred in stating that appellant's defense, in addition to a plea of not guilty, was that the girl was not a virtuous and chaste girl, and that he had the additional defense that the transaction was one of barter and sale. This would be included in the statement that she was not virtuous and chaste. But we did not hold that such an issue was not in the case, but if raised it was sufficiently presented in the court's charge, and the jury found against such contention. It was not proper to charge the jury as requested by appellant, that if the prosecutrix relied solely on the promise of marriage in yielding to appellant, he should be acquitted. It is the yielding, relying on the promise, and appellant's conduct that a conviction is authorized.

The fifth contention is that we did not pass on the assignment that the evidence was insufficient to sustain the conviction. We certainly thought that it could be gathered from the opinion that we thought the evidence ample to sustain the verdict. It is true that the baby was born in about eight months from the time the young lady gives as the date of the act of intercourse, but this fact would not render the testimony wholly insufficient. As testified to by the doctor in this case, children who are born in eight months from conception frequently live. The fact that it was born in eight months, its size, condition, etc., is to be considered with all the facts in the case, and we suppose appellant's able counsel presented this circumstance to the jury with the same force and ability that they present it in their brief and in this motion, yet the jury found adversely to their contention, and we can not say they were not authorized under all the evidence to do so.

The motion for rehearing is overruled.

Overruled.