Slaughter v. State

• Decision Date: 21 January 1920
• Docket Number: (No. 5451.)
• Citation: 218 S.W. 767
• Parties: SLAUGHTER v. STATE.
• Court: Texas Court of Criminal Appeals

218 S.W. 767

SLAUGHTER v. STATE.

(No. 5451.)

Court of Criminal Appeals of Texas.

January 21, 1920.

On Motion for Rehearing February 18, 1920.

Appeal from District Court, Hale County; R. C. Joiner, Judge.

W. H. Slaughter was convicted of seduction, and he appeals. Reversed and remanded.

Bouldin & Surles, of Mineral Wells, and Geo. L. Mayfield and Kinder & Russell, all of Plainview, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The conviction is for seduction, and the principal question requiring consideration is the correctness of the court's action in refusing, in response to appellant's request, to amend his charge on the subject of corroboration of the testimony of the woman charged to have been seduced.

Our statute declares:

"If any person, by promise to marry, shall seduce an unmarried female under the age of twenty-five years, and shall have carnal knowledge of such female, he shall be punished," etc. "The term `seduction' is used in the sense in which it is commonly understood." P. C. arts. 1447, 1448.

"No conviction can be had upon the testimony of the said female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged." C. C. P. art. 789.

Appellant insists that the corroboration intended should go to both the promise of marriage and the carnal knowledge, and that in a proper case, upon timely and adequate request, it is the right of the accused to have the jury so instructed. The correctness of this proposition has been affirmed by this court on several occasions.

In the case of Woolley v. State, 50 Tex. Cr. R. 214, 96 S. W. 28, the court expressly held good an exception to the charge on the ground that it failed to advise the jury in substance that the corroboration was incomplete unless it tended to support the evidence of the injured female to the marital contract and the act of intercourse. The court stated:

"It is necessary in a case of this character that the prosecutrix * * * be corroborated both as to the marital contract and the intercourse with the alleged seducer."

The same proposition in substance is announced in Barnard v. State, 76 S. W. 475, and Keaton v. State, 73 Ark. 265, 83 S. W. 911. We are aware of no instance in which a conviction for this offense has been sustained in which the injured female was a witness, and in which there was not corroboration tending to show the connection with the accused on trial with the promise of marriage and the carnal knowledge. The cases do not disclose that the question is a debatable one, but analyze the evidence on the assumption that the verdict could be supported only in the event that there was other evidence than that of the female tending to prove the connection of the accused with both the promise of marriage and the sexual act. Note Bailey v. State, 36 Tex. Cr. R. 545, 38 S. W. 185; Anderson v. State, 39 Tex. Cr. R. 87, 45 S. W. 15; Bernard v. State, 48 Tex. Cr. R. 111, 86 S. W. 760, 122 Am. St. Rep. 936; Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 221; Spenrath v. State, 48 S. W. 193; Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006; Ice v. State, 208 S. W. 344; Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120; Gorzell v. State, 43 Tex. Cr. R. 84, 63 S. W. 126; Wright v. State, 31 Tex. Cr. R. 359, 20 S. W. 756, 37 Am. St. Rep. 822, from which case we quote:

"As to the sufficiency of the testimony we think the witness is amply corroborated as to the promise of marriage and the illicit intercourse. Corroborative evidence need not be direct and positive, or such evidence as is sufficient to convict, independent of that of the prosecutrix, but simply such facts or circumstances as tend to support her testimony, and shall satisfy the jury she is worthy of credit. And when there is other testimony fairly tending to support the prosecutrix upon facts essential to constitute the offense, it is for the jury to say whether she is corroborated. State v. Timmens, 4 Minn. 325 [Gil. 241]."

The statute in Minnesota says:

"No conviction shall be had * * * on the testimony of the female seduced, unsupported by other evidence." Rev. St. 1851, c. 107, § 6.

And from the case cited we take the following:

"A conviction cannot be had under this statute upon the testimony of the woman seduced unless she is corroborated upon every material point necessary to the perfection of the offense, to wit, the promise to marry, the seduction under such promise, and the previous chaste character."

In this state the chastity is presumed, and the accused is presumed innocent, and to overcome this presumption in his favor evidence must be at hand proving an offense has been committed, and, if this proof comes in a seduction case from the injured female, then under the statute he cannot be convicted upon her testimony unless it is corroborated by other evidence tending to connect the defendant with the offense. The same statute as ours is in force in Oklahoma and in its construction by the courts of that state the following language is used:

"Now, there are but two things that he is charged with doing, viz. promising to marry the prosecutrix, and having illicit connection with her. The other two elements of the offense go to the character of the person protected by the law, viz. an unmarried female, and one of chaste character. With these two elements the defendant is in no way connected; no action of his brings about either condition; but * * * her evidence alone is not sufficient to establish such promise, and, if he has had illicit intercourse with her, this act also connects him with the offense, and the evidence of the female with whom the intercourse was had is not sufficient to prove such fact. Hence we think the purpose of the statute is to require the prosecutrix to be corroborated on the promise of marriage and the illicit intercourse, and not upon the elements that go alone to her characteristics." Harvey v. Terr., 11 Okl. 156, 65 Pac. 837.

In practically all of the states of the Union the Legislatures have seen fit to enact a statute in substance like ours, qualifying the effect of the testimony of the seduced female. This, we think, is not because she is an accomplice; she is rather the victim of crime than its perpetrator. As said by Judge Davidson in Nash v. State, 61 Tex. Cr. R. 287, 134 S. W. 723:

"The law of seduction does not proceed upon the idea that the alleged seduced female is a particeps criminis, but regards her more in the light of a victim who has been overreached, seduced, and debauched by and through deceptive wiles and promises of the seducer and one who would not have surrendered her virtue but for such deception. This aids the legal presumption of chastity. But the fact remaining that she is no longer a chaste woman, and as being one who has fallen, without reference to the means used, she having consented, imputes to her that want of moral stamina which would prevent her from being governed by revenge or resorting to any means by which her social condition would or could be bettered. The law regards the danger in which any man might be placed, though entirely innocent, if the same weight and credit be given to the testimony of a woman of that kind as to one whose moral character had not been corrupted to such extent as to cause her to part with her virtue. Hence the law requires corroboration as a protection against her wiles, interests, or revenge or other motive."

Whether this reasoning be accepted or not, the fact stands out that this state and nearly all others in our country have recognized that there was some sound reason for modifying the effect of the testimony of the woman thus situated, and the duty of the courts to give effect of this modification when its scope is ascertained is manifest. On this point the Supreme Court of Mississippi, in Ferguson v. State, 71 Miss. 805, 15 South. 66, 42 Am. St. Rep. 492, construing a statute that "the testimony of the female seduced...