Nolen v. State

• Decision Date: 21 June 1905
• Citation: 88 S.W. 242
• Parties: NOLEN v. STATE.
• Court: Texas Court of Criminal Appeals

88 S.W. 242

NOLEN v.STATE.

Court of Criminal Appeals of Texas.

June 21, 1905.

Appeal from District Court, Bosque County; O. L. Lockett, Judge.

Tom Nolen was convicted of seduction, and appeals.Reversed.

Dillard & Word and Cureton & Cureton, for appellant.Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

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

Appellant complains of the following portion of the court's charge: "The evidence of the witness Mrs. Willie Bell Stanley, made in the office of the attorneys for defendant, in which statement she says that the offense committed by defendant was rape, is admitted for the purpose only of showing that she had made a different statement to what she testified to on the trial, if said statement does show that; and as to whether it does or not you are the exclusive and only judges."The evidence shows that prosecutrix was a single woman, of course, at the time of the alleged seduction, but subsequently married a man by the name of Stanley; and that prior to the trial she appeared in the office of the attorneys for defendant, and made a statement, in substance, that appellant had raped her.The above-quoted charge is an effort on the part of the court to limit the effect of said testimony, which statement was proved on the trial.The court committed error in attempting to limit said testimony to contradiction alone; same was admissible for impeachment.Crockett v. State(Tex. Cr. App.)49 S. W. 393.

The eighth bill of exceptions shows that appellant, after identification, offered in evidence certain letters written by prosecutrix to a third party, in which prosecutrix shows a vulgar and lascivious mind.We do not deem it necessary to copy said letters.Previous acts and conduct of prosecutrix are admissible for the purpose of discrediting prosecutrix, and also for the purpose of shedding light upon her chastity at the time of her alleged seduction by defendant.The court committed error in excluding these letters.Davis v. State, 36 Tex. Cr. R. 550, 38 S. W. 174;Creighton v. State(Tex. Cr. App.)51 S. W. 910;McClain's Cr. Law, vol. 1, p. 277, § 1117.

The record contains various bills with reference to the refusal of the court to permit appellant to prove acts of the prosecutrix, subsequent to the alleged commission of the offense, going to show illicit relations or lascivious conduct with other parties than defendant.This evidence should have been admitted.It was admissible for the purpose of showing that prosecutrix was unchaste prior to the alleged illicit intercourse with appellant.Davis v. State, 36 Tex. Cr. R. 550, 38 S. W. 174.Creighton v. State(Tex. Cr. App.)51 S. W. 910.The mere fact that prosecutrix becomes a prostitute, if such be the case, after being seduced, would not be any justification or defense to appellant for seducing prosecutrix.But if her conduct be such as to indicate general prostitution on her part, this is and should be considered as a circumstance by the jury in passing upon whether or not she was probably chaste at the time of her alleged seduction.While the court should admit this testimony, still it should be limited to the purpose for which it was introduced as indicated.We are not attempting to lay down any form of charge, but to indicate that the court should instruct the jury that such evidence should only be considered by them for the purpose of passing upon whether or not prosecutrix was chaste at the time of the alleged seduction, and for no other purpose.

Appellant requested the following instruction: "Th...