Kelly v. State

• Decision Date: 09 December 1893
• Citation: 24 S.W. 295
• Parties: KELLY v. STATE.
• Court: Texas Court of Criminal Appeals

24 S.W. 295

KELLY v. STATE.

Court of Criminal Appeals of Texas.

December 9, 1893.

Appeal from district court, Scurrey county; C. P. Woodruff, Judge.

Charles Kelly was convicted of seduction, and appeals. Reversed.

C. C. Johnson and R. H. Looney, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

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

1. Appellant applied for a continuance on account of the absence of Yates and McIver, stating he had caused an attachment to issue for Yates, in Kaufman county, on October 13, 1893, writing to the officer his whereabouts, but there had been no return up to the time of filing this motion, to wit, October 30, 1893; that he had made constant and diligent search for McIver, assisted by his attorneys, and on the previous day had first learned he was in Bosque county; that he expected to prove acts of criminal intimacy between the said named parties and the said Mary Caruthers, the alleged injured female, and stating the times and places. The indictment was found in this case May 5, 1893. We may concede that sufficient diligence was not shown by appellant in procuring the witnesses. Still, the case, as developed on trial, raises a grave question as to the importance of the proposed testimony; and under the facts, as proven, we believe the court should have given appellant another opportunity of obtaining the said witnesses. If, indeed, appellant is unable to make proof of the facts alleged in his motion, there can be but little question, as the record now stands, of his guilt. It was shown on trial that the witness McIver had been speaking to many persons about Miss Caruthers' want of chastity. He had been her writing master, and had boasted of favors that he had received from her. He was brought to a reckoning by the father and others, and signed what the witnesses call "a lie-bill." Now, it might be difficult to induce such a witness to attend court willingly, with a written confession of falsehood awaiting him; and ordinarily his evidence, when given, would not be of much value. Still, subsequent events might justify the jury in believing the first statements to be true, and the "lie-bill" to be false. Again, as to the witness Yates: Though she denies any criminal intimacy with him, she admits she knew him, and he attended her from church to Mr. Rose's house. It was upon this occasion, during a protracted meeting, at night, that appellant, in his motion for a continuance, alleges the criminal intimacy to have taken place between Miss Caruthers and Yates, and that subsequent thereto Yates used to meet her at her own home for such purposes. Now, while, under other circumstances, this testimony might be ignored as probably untrue, yet Miss Caruthers' own conduct is not such as to justify this conclusion. It appears from her own testimony that, the night before she yielded to appellant, th...