Gillespie v. State

• Decision Date: 28 January 1914
• Docket Number: (No. 2800.)
• Parties: GILLESPIE v. STATE.
• Court: Texas Court of Criminal Appeals

166 S.W. 135

GILLESPIE v. STATE.

(No. 2800.)

Court of Criminal Appeals of Texas.

January 28, 1914.

On Motion for Rehearing, March 18, 1914.

Dissenting Opinion, April 23, 1914.

Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.

Jeff Gillespie was convicted of seduction under promise of marriage, and he appeals. Affirmed on rehearing.

Woods & Morrow, of Kaufman, Nelms & Puckitt, of Dallas, Fred S. Rogers, of Kaufman, and W. F. Ramsey and C. L. Black, both of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was convicted of seduction; his punishment being assessed at two years' confinement in the penitentiary.

The record discloses that the judge called a special term of the court to meet on the 19th day of May. This seems to have been occasioned by reason of the fact that the Legislature changed the time of holding terms of the district court in that county. To avoid any possible or probable consequences, the judge called the special term to meet on the same day the regular term convened under the prior law. At the time of calling the special term, the new law was not in force and would not be until July. Under previous act of the Legislature, the court in regular term convened on that particular Monday, which happened to fall on the 19th of May. So we have, as a matter of fact, the special term called for the same day that the regular term should have convened. Had the judge not called the special term for that particular day, under the law the regular term would have convened. We are of opinion that there is no merit in appellant's proposition that the special term was unauthorized by law. It would make no difference that the judge issued his order calling the special term on that day. It would have been the regular day for the term anyway. It did not in any way interfere with the two regular terms required by the Constitution for the district court to be held in the county.

The indictment incorporated in the record fails to conclude "against the peace and dignity of the state," as required by the Constitution. It may be this was an omission on the part of the clerk in transcribing the indictment, but such is the record. This renders the indictment invalid, and for this reason the judgment must be reversed. We notice this question in passing, for by certiorari this defect might be cured by showing it was an omission by the clerk in transcribing the indictment.

There are other matters in the record that will have to be noticed, and which, in our judgment, require a reversal. The prosecutrix testified substantially that appellant and she had been going together since 1907, and became engaged to be married; that, when the first solicitation on his part was made, she agreed to and did have intercourse with him under this promise of marriage. She states also in substance that he told her if she became pregnant or anything happened he would immediately marry her, and too quick for it to be known. Some time in 1910 she says the first act occurred, and that it kept up with regularity as occasion presented until a few months before the birth of her child; and that on each of these occasions he promised to marry her. There is evidence also that she went with several other young gentlemen in the neighborhood on various and sundry occasions to different functions, church and other places. Some of these associations with other young gentlemen were shown to have been at night and when she was alone with them. The defendant also introduced evidence to the effect that she was caught in some bushes in a very compromising attitude with one Burton. This was denied on the part of the state, and there was evidence pro and con as to whether it was Burton that she was seen with, but the defendant's witness was pretty positive as to this fact. The defendant admits going with the girl and having intercourse with her, but denies there was any promise of marriage.

The court in a general way gave the jury a definition of seduction. Applying the law to the case, the jury was informed that if they should find from the evidence that appellant, "by a promise to marry her, made by him to Lela Heffington, did seduce and obtain carnal knowledge of her, and that she was at the time a chaste and unmarried female under the age of 25 years, and that she yielded her person to and had carnal intercourse with the defendant by reason of a promise of marriage made by him to her, on which she relied," then he would be guilty. He also charged the prosecutrix would be an accomplice, and that the corroboration would not be sufficient if it merely shows the commission of the offense charged, but it must tend to connect the defendant with its commission, and then from all the evidence, the jury must believe, beyond a reasonable doubt, the defendant is guilty. He then charged them that it was not necessary that the evidence be positive and direct; that she could be corroborated by circumstances which tended to connect the defendant with the commission of the offense charged. Then he gave this clause in the charge: "It is for you to say, from all the facts and circumstances in evidence before you, whether she has been sufficiently corroborated, and, if you find there is an absence of such corroborative testimony, you must acquit the defendant." We notice this clause in passing, because of further matters suggested in connection with the court's charge and refusal to give special instructions. We desire to say that it hardly states the rule correctly to say it is for the jury to say from the facts and circumstances that she has been corroborated; the corroboration must tend to connect defendant with the offense, nor is it correct to require the jury to find there was an absence of corroboration in order to acquit. This changes the burden of proof and requires the jury, before they can acquit, to find an absence of corroboration. The rule is that she must be corroborated, and, unless she is so corroborated, the jury will acquit. It is not the absence of corroboration which requires acquittal, but it is the presence of corroboration that authorizes a conviction; and, unless she is corroborated, the state has no legal case. Under this rule laid down by the court, the jury could not acquit, unless they should find that there was an absence of corroboration. The rule is the reverse, that the state must show the corroboration in order to get a verdict.

The court further charged the jury that if they should believe from the evidence that appellant had carnal intercourse with prosecutrix one or more times, but believe that at the time of the first act of intercourse she was not a chaste woman, or if they had a reasonable doubt of that fact, they should acquit, even though the jury might find that such act of intercourse was produced by a promise of marriage; or if they should find that she was a chaste woman at the time of the first act of intercourse between her and defendant, but should find that she yielded to same, not because of a promise of marriage, but on account of her own amorous passion or sexual desires, or if they had a reasonable doubt, they should acquit; or if they believed that the first act of intercourse between defendant and prosecutrix was induced or brought about by any means other than by a promise of marriage made by defendant to her upon which she relied, or if they had a reasonable doubt thereof, they should acquit; or if they had a reasonable doubt as to whether defendant promised to marry her, they should acquit. Various objections were urged to these charges at the time, and appellant asked, among other things, the following charge: "The jury are instructed that in this case you cannot find that there was a promise of marriage upon the testimony of the prosecutrix, Lela Heffington, alone, but, under the law, her evidence as to the promise of marriage must be corroborated; that is, confirmed by direct and positive testimony or by circumstances of such a character as to convince the jury, beyond a reasonable doubt, that her testimony in this respect is true." This charge was refused because, the court says, covered in the main charge. We are of opinion that it was not, and especially in view of the fact that the court charged the jury, as above mentioned, that, if the jury should find there is an absence of corroboration, they would acquit. The special charge should have been given, and, under the attitude of this record, the error in the court's charge, and refusal to give the special requested instructions, the judgment ought not to be affirmed.

Exceptions were also reserved to the charge because it failed directly and affirmatively to instruct the jury that, if the prosecutrix yielded her virtue under promise of marriage to appellant that if she became pregnant he would marry her, he should be acquitted. This was not pointedly given to the jury, and, under the testimony, we are of opinion it should have been affirmatively charged, and that this particular question should have been called to the attention of the jury in the charge. The testimony of prosecutrix indicates that this may have occurred, and that she yielded her person to him on a promise that if she became pregnant he would marry her.

There are several bills of exception reserved to the ruling of the court on the admission and rejection of testimony. The reputation of the prosecutrix became a leading question in the case. It was attacked for want of chastity and virtue. The appellant supported his theory that she was not a chaste woman, and introduced quite a lot of evidence showing she was out at night with other men, and at times and under circumstances which reflected upon her character for chastity, and tended to show that it was not good; that is, that such conduct was a reflection upon her chastity and good name. The state introduced evidence to support her reputation for chastity as being good,...