Dunlap v. State

• Decision Date: 22 April 1925
• Docket Number: (No. 8642.)
• Citation: 275 S.W. 833
• Parties: DUNLAP v. STATE.
• Court: Texas Court of Criminal Appeals

275 S.W. 833

DUNLAP v. STATE.

(No. 8642.)

Court of Criminal Appeals of Texas.

April 22, 1925.

Rehearing Denied October 7, 1925.

Commissioners' Decision.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Walter Dunlap was convicted of seduction, and he appeals. Affirmed.

J. D. Burns, of Hillsboro, T. P. Scott, of Waco, and Smith & Clarke, of Hillsboro, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

BAKER, J.

Appellant, Walter Dunlap, was indicted, tried, and convicted in the district court of Hill county for the offense of seduction, and his punishment assessed at two years' confinement in the penitentiary.

Appellant's attorneys in this case have filed a very extensive and exhaustive brief, the greater portion of which is devoted to the attacking of the indictment because it fails to allege that the prosecutrix was of chaste character prior to the date of the alleged offense, and also in other forms bring into question the same issue.

The indictment follows the statute, and alleges that the defendant —

"did then and there unlawfully, under and by virtue of a promise of marriage made by him to Molley Motley, who was then and there under the age of 25 years, seduce and have carnal knowledge of such female," etc.

The Legislature, having in mind evidently that such a question might be raised as contended for by the appellant in this case, and in order to avoid any confusion over such matters, took the precaution to define what was meant by "seduction" in passing article 1448, Vernon's P. C., which is as follows:

"The term `seduction' is used in the sense in which it is commonly understood."

In the case of Slaughter v. State, 86 Tex. Cr. R. 527, 218 S. W. 767, Presiding Judge Morrow, in a very extensive opinion, citing many authorities in and out of this state, in the writer's opinion covers the complaint made in the instant case, and in the case supra cites an Oklahoma case, in which the statute of that state is like ours, and quotes this language:

"Now, there are but two things that he is charged with doing, namely, promising to marry the prosecutrix, and having illicit connection with her. The other two elements of the offense go to the character of the person protected by the law, namely, an unmarried female, and one of chaste character. * * * Hence, we think the purpose of the statute is to require the prosecutrix to be corroborated on the promise of marriage and the illicit intercourse, and not upon the elements that go alone to her characteristics," — citing Harvey v. Terr., 11 Okl. 156, 65 P. 837, and also cites a Mississippi case (Ferguson v. State, 71 Miss. 805, 15 So. 66, 42 Am. St. Rep. 492) as follows:

"When she is supported as to the promise of marriage and the act of sexual intercourse — the two great fundamental essentials — the corroboration, we think, will be sufficient."

We are of the opinion that the Slaughter Case, supra, is an authority against the contention of the appellant in this instance, and settles the contention against him with reference to the sufficiency of the corroboration of the evidence in the instant case.

Appellant complains of the action of the court in overruling his motion for continuance, which is in the usual form for a first application, seeking a continuance for the want of the testimony of Mrs. Cornell. The state controverted the diligence and contested said motion, and in said contest alleged that it was not the first application for continuance but was the second application; and the court, after hearing the motion and the contest on same, in overruling said application, found against the defendant, and we are not prepared to say that same was error from the record before us. The contest shows that there was a period of about 51 days from the arrest of the defendant until the process for said witness was obtained, in addition to other grounds showing a want of diligence. We hold that there was no error in the court's action in this particular.

Appellant complains of the court's action in permitting the prosecutrix to testify that she would not have permitted the defendant to hug and kiss her and in permitting her to testify that no man besides the defendant had carnal knowledge of her prior to the date of the offense, and that she would not have submitted to such conduct had she not relied on his promise of marriage. We think there was no error in the court's action in this particular.

There is also complaint upon his part to the court's admitting in evidence letters which the prosecutrix testified she had received from the appellant, of a very endearing nature, and which one of the state's witnesses also testified to having read, upon the ground that there was no proof of the execution of said letters as a basis for said testimony. The court, in qualifying and explaining these bills, states that there was no such objection raised to this testimony until it was called to his attention by a special charge and in the motion for new trial. In view of said explanation, there was no error in the admission of said testimony. The defendant did not testify in the case, and doubtless, if this question had been raised at the time the evidence was admitted, the court would have required proof as to the author of same before admitting them.

We have not seen fit to discuss all of the bills in the record, but we have carefully considered same, and, after a careful consideration of the entire record, we...