Spenrath v. State

• Decision Date: 14 December 1898
• Citation: 48 S.W. 192
• Parties: SPENRATH v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W. 192

SPENRATH v. STATE.

Court of Criminal Appeals of Texas.

December 14, 1898.

Appeal from district court, Kerr county; I. L. Martin, Judge.

Joseph Spenrath, Jr., was convicted of seduction, and he appeals. Reversed.

Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of seduction, and his punishment assessed at confinement in the penitentiary for a term of four years; hence this appeal.

During the trial of the case, appellant reserved a number of exceptions to the rejection of evidence, but, as presented in the bills, we fail to see any error in the action of the court.

It is urgently contended that the evidence is insufficient to support the verdict. In Putman v. State, 29 Tex. App. 454, 16 S. W. 97, the following rule was laid down in regard to this offense: "The offense consists in enticing a woman from the path of virtue, and obtaining her consent to illicit intercourse by promises made at the time. The promise and yielding her virtue in consequence thereof is the gist of the offense. If she resists, but finally assents or yields thereto in reliance upon the promise made, the offense is committed." And further, quoting from State v. Reeves, 97 Mo. 668, 10 S. W. 841, the court say: "No one can with any degree of plausibility contend that a virtuous female could be seduced without any of those arts, wiles, and blandishments so necessary to win the hearts of the weaker sex. To say that such a one was seduced by simply a blunt offer of wedlock in futuro, in exchange for sexual favors in præsenti, is an announcement that smacks too much of bargain and barter, and not enough of betrayal. `Tis hire or salary, not seduction." We understand this construction of our statute has since been followed. Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477; McCullar v. State, 36 Tex. Cr. R. 213, 36 S. W. 585; Bailey v. State, 36 Tex. Cr. R. 540, 38 S. W. 185.

Testing the case before us by the rule above laid down, let us see if the testimony supports the verdict. It is true the prosecutrix, by her testimony, makes out a case pro forma; but, when her own testimony is analyzed, it fails to make out a case of seduction. She testified that appellant had carnal intercourse with her under a promise of marriage, at the house of one Doebler, in Kerr county, on the night of the 4th of December, 1897, about 12 o'clock at night, and that at that time he promised to marry her, and that that was the inducement which caused her to have intercourse with him; that she had a child about the last of August, 1898. And it is further shown by other witnesses that appellant had opportunity to copulate with her on that particular night. It is, however, shown by this witness, that she had previously had intercourse with appellant on three different occasions, the first occasion being in Kendall county, and more than a year before the commission of the alleged offense; that she had intercourse with him twice before in Kendall county, and once in Gillespie county. She states that on each of these occasions he promised to marry her, but there was no time set, just a general promise to marry; that on the occasion in Kerr county, on which this prosecution is based, he told her that, if anything happened to her, he would marry her...