Merrell v. State

• Decision Date: 03 December 1902
• Citation: 70 S.W. 979
• Parties: MERRELL v. STATE.
• Court: Texas Court of Criminal Appeals

70 S.W. 979

MERRELL v. STATE.

Court of Criminal Appeals of Texas.

December 3, 1902.

Appeal from district court, Johnson county; Pierce B. Ward, Special Judge.

Charley Merrell was convicted of seduction, and appeals. Affirmed, and motion for rehearing overruled.

S. C. Padelford and Brown & Bledsoe, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of seduction, and given two years in the penitentiary.

He sought a continuance on account of the absence of B. L. Howard and Dr. J. M. Towns. By Towns he expected to prove that, some years prior to the alleged seduction, defendant was thrown from a horse, and received injuries to his head, since which time he has not been very strong-minded. What this has to do with the case is not made apparent, either in the application for continuance, or in the statement of facts. It is not contended that appellant is insane, nor does the evidence tend to suggest that issue. By Howard he expected to prove that "prior to the time defendant had anything to do with Nora Livingstone, and the time alleged in the indictment (the party whom defendant is charged with having seduced), said witness Howard took undue liberties with the said Nora Livingstone, fondling her person, and that she agreed to have sexual intercourse with him." Averments as to what a party charged with crime expected to prove by absent witness must be specifically alleged. General averments will not do. It will be observed that appellant carefully avoided stating the time, place, circumstance, or any matter connected with the undue liberties Howard should have had with Nora Livingstone. It has been stated by some of the decisions that an allegation with reference to absent evidence must be so particularly stated that it could form the basis of a charge of perjury. Certainly this continuance, as to what was expected to be proved by Howard, could not be made the basis of perjury. It is so general, and covers so much time, that it would be impossible to locate when and where these matters occurred. The seduced girl was about 20 years of age, and this application leaves the space of time anywhere back towards her birth. But if the allegations were sufficient, the diligence is certainly and clearly insufficient. This indictment was returned on May 3, 1899. There was a former conviction, and on appeal to this court the judgment was reversed in the spring of 1900. The first process issued by appellant for Howard was May 23, 1901,—20 days more than two years subsequent to the filing of the indictment. This process seems not to have been served. Second subpoena was issued December 3, 1901, and the third subpœna on June 3, 1902. This is the diligence. This is the second application for continuance. Howard, the absent witness, is an uncle of appellant. This application, viewed in the light of the record, does not suggest itself favorably. The court did not err in overruling it.

There are several bills of exception alleging error in the action of the court permitting the state to prove the death of the seduced girl. In reply to these bills, Bailey v. State (Tex. Cr. App.) 30 S. W. 669, is conclusive against appellant. There was also evidence putting before the jury the fact that the seduced girl committed suicide. This was eliminated at the time the witness testified, and also by the charge to the jury. We are not prepared to say that, under the circumstances of the case, had it not been eliminated, there was error in permitting this testimony, from the fact that defendant, in order to mitigate the evidence of his flight, and break the force of it before the jury, proved by his mother that he had advised her of the girl's death,—that she had suicided by taking poison,—and thereupon she advised him to leave the country. Appellant would hardly be heard to complain of evidence with which he sought to break the force of the criminating fact of his flight.

Objections are urged to statements of appellant in regard to his engagement to marry Nora Livingstone, and his having intercourse with her pending the engagement to marry. This is so clearly admissible that we deem it unnecessary to discuss it.

Appellant also objected to the introduction of evidence to the effect that at the time of the death of the seduced female, Nora Livingstone, she was pregnant. This was clearly admissible, under the authority of Snodgrass v. State, 36 Tex. Cr. R. 208, 36 S. W. 477.

Objection was also urged to the action of the court permitting the state to reproduce before the jury the testimony of appellant at a former trial. This has been expressly decided adversely to appellant in Preston v. State, 41 Tex. Cr. R. 300, 53 S. W. 127, 881.

Over appellant's objection, Mrs. Jones was permitted to testify in regard to appellant's flight, and the conversation that occurred between them that led up to the flight, and especially the remarks made by appellant to Mrs. Jones, the substance of which was that he told witness that he heard at Joshua that Mr. Livingstone had threatened to kill him, and that his girl was dead, and asked what to do about it, and she told him to go. He stated that he had heard at Joshua that the girl had killed herself, and Mr. Livingstone was going to kill him. This was appellant's statement, criminative of himself, and it was his act of flight, and clearly admissible.

While Mrs. Livingstone was on the stand, she testified as to a conversation that occurred between defendant and her daughter Nora and herself on the 8th of January, 1899; that Nora was crying, and she asked what was the matter, and she was weeping so she could not talk, and said nothing, except that he was going off, and was speaking of going to Oklahoma, and Nora was begging him not to leave her. The witness, on cross-examination, stated that she had not heard any conversation between the parties. On redirect examination she was permitted, over appellant's objection, to state that she had testified to this same fact on a former trial, and the reason she did not do so this time was because she had been in so much trouble about this matter that she overlooked it in her testimony in chief. We are at a loss to know why this testimony should have been rejected. Appellant had sought to impress the jury with the fact that her testimony was different upon this trial than what it was on the previous trial. The state had sought to show (which it had a right to do) that she had testified on the former trial to facts that she had omitted on this trial, and the reason why she had overlooked it on this trial. This is admissible, under all the rules.

Appellant excepted to the action of the court permitting the state to prove that appellant did not marry the seduced girl. It occurs to us that this was not only admissible, but necessary proof.

One or more bills were reserved to the action of the court refusing to permit Mrs. Jones to testify to conversations which occurred between herself and the father of deceased in regard to appellant's failure to marry the seduced girl. These bills are quite lengthy, and narrate conversations between Mrs. Jones and Mr. Livingstone in which they express themselves more or less freely in regard to defendant and deceased. We do not care to enter into a discussion of this question. It was decided adversely to appellant in Parks v. State, 35 Tex. Cr. R. 378, 33 S. W. 872.

There are also several bills reserved to the admission of statements of appellant in regard to his relation to deceased prior to her death, such as promises to marry and kindred expressions, and we are asked to reverse the judgment because this testimony went to the jury. Statements of appellant which are criminative in their nature, and which tend to connect him with the crime committed, are always admissible.

The exceptions to the charge of the court are very lengthy, most of which we consider without merit. It is contended, however, that the court failed to inform the jury as to the constituent elements of the term "seduction," and that the charge should have fully defined that term. The term was defined in accordance with the previous decisions of this court and all the authorities which have come under our observation. The cases cited by appellant which were reversed because of a defect in the charge were those cases in which the term "seduction" was not defined in the...