Cole v. State

Citation40 Tex. 147
PartiesALFRED COLE v. THE STATE.
Decision Date01 January 1874
CourtSupreme Court of Texas
OPINION TEXT STARTS HERE

1. In a motion for a new trial in a criminal case, the affidavit of the witness to the new matters relied on must be produced, or good reason shown for its absence.

The crime “seduction” is sufficiently described in the penal code.

The “injured female,” in prosecutions for seduction, is not a competent witness for the prosecution; but if her testimony is not objected to when offered, or its introduction insisted on in a motion for a new trial, the defendant will not be allowed to complain in the supreme court.

4. In trials for felony, the court is required to charge distinctly the law applicable to the case, whether asked or not; and a failure to do so, apparent on the record, is ground of reversal, whether assigned as error or not.

5. The “promise of marriage” is an essential part of the crime of seduction.

APPEAL from Cass. Tried below before the Hon. J. D. McAdoo.

Alfred Cole was indicted at the August term, 1873, for the seduction of Ferriby Miles, and at the same term was tried.

The court instructed the jury as follows: “If the evidence shows beyond a reasonable doubt, that the defendant did, by promise to marry, seduce one Ferriby Miles, and did have carnal knowledge of her, then you will find him guilty, and assess his punishment at confinement in the penitentiary for a period of not less than two years nor more than five years, or by a fine not to exceed $5,000. The term seduce, as used in the above charge, is used in the sense in which it is commonly used.”

The jury found the defendant guilty, and fixed the punishment at two years' confinement in the penitentiary.

Motion for a new trial on newly-discovered evidence, and motion in arrest of judgment, were both overruled, and defendant appealed.

D. B. Culberson, for appellant.

Browne, for the state.

MOORE, ASSOCIATE JUSTICE.

The indictment charges, that Alfred Cole “did unlawfully and feloniously, and by promise to marry one Ferriby Miles, an unmarried woman under twenty-five years of age, seduce, and debauch, and have carnal knowledge of the said Ferriby Miles--he, said Alfred Cole, being an unmarried person.”

This portion of the indictment is quoted in order to present a clear view of one or more of the grounds of the motions for a new trial and in arrest of judgment.

The defendant was found guilty by the jury, and his punishment was fixed at two years' confinement in the state penitentiary.

His motions were overruled, and he appeals, and assigns for error the ruling of the court in refusing the new trial on the ground of newly-discovered evidence.

The testimony proposed to be proved by the new witnesses is set out in the affidavit of the defendant, and is the only ground for the new trial. It is the statement of the defendant on information that the facts sought to be used on another trial can be proved by the witnesses, whose names and residences are given, stating the guilty connection between the witness Ran and Ferriby Miles, as proved by Ran on the trial.

The statute provides that a motion for a new trial on the ground of newly-discovered testimony shall be governed by the same rules as those which regulate civil suits. Under these rules, the affidavit of the new witness must be produced, or good cause shown why it is not done. The defendant failing to comply with this requirement, the court did not err in overruling the motion for a new trial.

The grounds of the motion in arrest of the judgment are...

To continue reading

Request your trial
13 cases
  • Carmell v Texas
    • United States
    • U.S. Supreme Court
    • 1 Mayo 2000
    ..."for many years a seduced female was an incompetent witness as a matter of law." Holladay, 709 S. W. 2d, at 200. See, e.g., Cole v. State, 40 Tex. 147 (1874); see also Hernandez, 651 S. W. 2d, at 751_752 (tracing the current Article 38.07 to the earlier seduction victim competency rule). In......
  • Holladay v. State
    • United States
    • Texas Court of Criminal Appeals
    • 7 Mayo 1986
    ...female was an incompetent witness as a matter of law. See Art. 1550, Section 3, 1859 Code of Criminal Procedure. Also see Cole v. State, 40 Tex. 147 (1874). The reason may also lie in the fact that corroboration in seduction cases was governed by a special statute and not the general statut......
  • Starke v. State
    • United States
    • Wyoming Supreme Court
    • 23 Junio 1908
    ...to do so or not, to fully instruct on all the law of the case. (State v. Bransetter, 65 Mo. 149; State v. Banks, 73 Mo. 592; Cole v. State, 40 Tex. 147; Sanders v. State, 41 Tex. 306; Miers v. (Tex.) 29 S.W. 1074; Charlton v. Sate, 43 Neb. 373; Pjarou v. State, 47 Neb. 294; Fulcher v. State......
  • Nash v. State
    • United States
    • Texas Court of Criminal Appeals
    • 9 Noviembre 1910
    ...or the expressions of contrition for the seduction, and by a promise made after the seduction to marry the girl after a time." Cole v. State, 40 Tex. 147; Rice v. Com., 102 Pa. 408; People v. Clark, 33 Mich. 112; People v. Millspaugh, 11 Mich. The testimony of the witness Katie Weddle does ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT