Rhodes v. State

• Decision Date: 28 February 1923
• Docket Number: (No. 7416.)
• Citation: 248 S.W. 679
• Parties: RHODES v. STATE.
• Court: Texas Court of Criminal Appeals

248 S.W. 679

RHODES v. STATE.

(No. 7416.)

Court of Criminal Appeals of Texas.

February 28, 1923.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Johnnie Rhodes was convicted of seduction and he appeals. Affirmed.

Fox Campbell, of Livingston, and J. A. Mooney, of Woodville, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Polk county of seduction, and his punishment fixed at confinement in the penitentiary for a period of three years.

Appellant questioned the sufficiency of the indictment. Examining same, it appears that in alleging that the prosecutrix was an unmarried female "under the age of 25 years" the pleader misspelled the word "years" and made the same appear "yeard." Numerous authorities are cited under article 476 of Vernon's Ann. Code of Criminal Procedure, in support of the proposition that bad spelling does not vitiate an indictment when the meaning is plain.

Appellant asked three special charges, one of which was given. We cannot consider the alleged error in the refusal of the other two charges because of the fact that neither upon them nor by separate bill of exceptions is it made known to us that appellant excepted to the refusal of such charges. It is necessary in order to bring before this court for review the refusal of special charges, that either on the charges by appropriate notation, or by separate bills of exception is here presented the fact that such refusal was then excepted to.

Appellant's exceptions to the court's charge appear in three separate documents marked A, B, and C. Exception A is not approved by the trial court and therefore cannot be considered by us as having been presented before the argument was begun or the main charge read to the jury. Kosarek v. State (Tex. Cr. App.) 235 S. W. 885. Exception B has on it no statement or notation of the fact that it was presented to the trial court before the main charge was read or the argument begun. Neither exception A nor B are presented here in separate bills. Edwards v. State (Tex. Cr. App.) 237 S. W. 933.

Exception C presents four grounds, first, that the charge fails to instruct as to any phase of accomplice testimony. Inspection of the main charge demonstrates the incorrectness of this exception, for the court did tell the jury that the prosecutrix was an accomplice, etc. The second ground is so worded as to present nothing to us by which we may ascertain what was intended. The third and fourth grounds fail here, in view of the fact that the special charge asked by appellant and given by the trial court instructs the jury that, if prosecutrix surrendered herself to the embraces of appellant on a conditional promise—that is, that if she became pregnant he would marry her— or unless they believed beyond a reasonable doubt that she did not so surrender her person to him upon such conditional promise, the jury should acquit. This special charge presented affirmatively the only defensive theory supported by testimony. There was no evidence offered in behalf of the appellant at all.

Appellant asked for a continuance, but an examination of his application shows it to be without merit. He states therein that he relied upon his belief that the prosecuting witness was not going to testify to any damaging facts against him, based on a conversation that he had with her, and therefore he had procured no process for any witnesses. He follows this by an allegation that, if he had a witness present by the name of Munson, he could prove by Munson that he had carnal knowledge of prosecutrix about the time of the commission of the offense herein charged against appellant. It is not stated where Munson lives, nor is any reason shown why the...