BAILEY v. THE STATE

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Docket Number

No 1364.

Judges

HURT, PRESIDING JUDGE.

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R. L. BAILEY v. THE STATE.

Hazlewood Smith, for appellant. — To constitute seduction, the female must submit to carnal intercourse by reason of a promise of marriage made or reiterated at the time of the seduction. Putnam v. State, 29 Tex.Crim. App., 454; Carney v. State, 79 Ala. 14; Phillips v. State, 108 Ind. 406; De Fore v. State, 64 Mich. 693; O'Neill v. State, 85 Ga. 383; Snodgrass v. State, 31 S.W. Rep., 366.

The law is that three facts must concur to constitute the crime of seduction: A promise to marry, seduction and carnal knowledge, and certainly the evidence fails to establish the crime in this case. There is a promise to marry shown, but this promise is in no way shown to have any logical connection with the other facts necessary to constitute the crime of seduction. It was not made at the time of the alleged seduction, and even if the State has shown carnal intercourse, this promise cannot avail anything, for there is nothing in the record to show that intercourse was submitted to by reason of it. Mr. Bishop, in his Statutory Crimes, par. 638, says that which is settled law: "Though the parties are already under marriage engagement, if the woman yields, not by reason of the man's promise of marriage, but simply for the gratification of a criminal desire, he does not commit the offense." Now if there is any strength in the presumption of innocence, the law would certainly not presume, in the absence of any other proof that the female submitted, by reason of the promise of marriage, when there is no proof except an engagement and intercourse.

The State has never proven carnal knowledge of Addie Hardin, if so, when? Hunnell and Holliday saw appellant and Addie on the streets of Van Alstyne, on the night of July 11th, 1894, and they were seen at McCann's hotel, but nothing improper is shown at these times, and no proof of intercourse can be predicated on their testimony. If carnal knowledge is shown at all, it must have been at Taylor's hotel. What lady was at that hotel with appellant? The evidence does not fully prove that it was Addie Hardin. The circumstance of A.F. Hardin seeing appellant and Addie together at McCann's hotel, the afternoon of that day; of Hunnell seeing them together on the streets of Van Alstyne that night; of Holliday seeing them together at the depot that night; of their enquiring for a hotel, of their being directed to Taylor's hotel; of their going in the direction of that hotel; of the lady that was at Taylor's hotel being tall, slender and light haired, and about seventeen years old, like Addie Hardin, and of Addie Hardin asking for appellant on the streets of Van Alstyne the next morning, do raise a strong probability that it was Addie Hardin with appellant. They do not exclude every other reasonable hypothesis, and they do not prove beyond a reasonable doubt that it was her. For the purpose of this argument, say it was Addie; then what do we have? Three months before the alleged seduction, appellant said he was going to have intercourse with Addie, but that he had no idea of marrying her; before they went to Taylor's appellant and Addie both told Addie's brother that they were married; when they got to the hotel he called Addie his wife, and she called appellant her husband, and he got a room for himself and wife for the night; they were assigned a room containing a bed and a lounge; they went into the room; Taylor supposed they occupied it all night; he saw them next morning at breakfast; he left and then Addie Hardin left — that is the evidence. Does it prove carnal knowledge? Let us test it by the rules of law and wisdom. In Richardson's case, 34 Tex. 143, a married man and a colored woman — not his wife — lived together for a series of months in the same room, wherein there was but one bed, and with no other attendant but a small child, and it was held sufficient to warrant a conviction of adultery. Mr. Bishop, in speaking of adultery in his Statutory Crimes, par. 679, says: "One of the common forms of circumstantial evidence consists of showing a purpose or inclination to commit adultery and the opportunity: that is, an adulteror's mind in the accused, the same in the person with whom the offense is charged, and a time and place, and the inference is more or less readily drawn that what was sought and could be, was." This is the rule in adultery; a more stringent rule is necessary in seduction. The facts in Richardson's case are infinitely stronger than in the case above. The declaration made by appellant to Ranzy McMakin three months before may show the adulterous mind of the accused, but remote in time; the occupancy of the room may show the opportunity, but, if the statement of Addie to her brother shows the adulterous mind in Addie it proves a great deal too much, for if she had this mind she was not the subject of seduction, and this would forever rebut the idea that any seducing or persuading was necessary in order to have the carnal knowledge, but no such conclusion can be reached from this statement of the girl, not from the remote declaration of appellant. This proof does not come up to even this rule laid down by Mr. Bishop in adultery. The proof is unsatisfactory; the mind reaches out after facts that the record should speak, and on which it is silent. We don't know whether the room was lighted all night or dark. The presumption of innocence says that if they slept at all, one slept on the lounge and the other in the bed. This record is silent as to whether the bed was slept on or not; there is no evidence of the cover being turned down or the pillows being mashed. No examination of the dead girl was made, though such an examination might at least have disclosed whether any body ever had intercourse with her. The evidence does not exclude every reasonable hypothesis but guilt. The spectre of the poor dead girl is placed on parade in this case and is made to hover around it throughout, but this prosecution is based on unwarranted ideas of her debauchery, that is a slander to her memory.

As to the other constituent of the offense, the seduction, the record is silent. There is not a circumstance of persuasian, or a circumstance of any attempt to lead away in the whole record. If it enters into the crime, it did not enter into this conviction. It is an element of the crime; is it to be proved or presumed? In this case it was presumed. The law says it must be fully proved. On account of the utter failure to offer any evidence that tended to prove this element of the crime, appellant asked the following instruction, which was refused: "The evidence in this case wholly fails to show any seducing on the part of defendant, and you will find him not guilty," and we contend that such an instruction would have been proper, under the circumstances of this case.

There is no proof that the alleged seduced female was unmarried. It might be inferred that she lived in the house with her mother for a month before the seduction, from her mother's evidence; she had her mother's name, and was engaged to be married. A widow cannot be seduced (21 Amer. and Eng. Ency. of Law, 1051, note 1). All these things might very naturally be true of a divorced woman. Our contention is that this proof is insufficient.

On the whole, we say that the evidence does not support the verdict, and that the court erred in refusing appellant a new trial, and that for this error this case ought to be reversed.

Mann Trice, Assistant Attorney-General, for the State.

1. Seduction — Proof that the Prosecutrix was Unmarried

On a trial for seduction, evidence that the prosecutrix was called "Miss," that she lived with her mother; that she received the addresses of defendant, and that they were engaged to be married, is sufficient proof that the prosecutrix was unmarried.

2. Same — Proof of Engagement to Marry.

Testimony of the mother of the prosecutrix, that defendant was frequently, about once a week, at her house, visiting her daughter; that defendant told her that he and her daughter were to be married, and asked her consent to the marriage, which she gave, is sufficient proof of the engagement of the parties to marry.

3. Same — Proof of Sexual Intercourse.

In seduction, sexual intercourse of the parties may be proved by circumstantial evidence, and where the evidence showed that defendant said, that he was going to have intercourse with the prosecutrix; that they went to an hotel, and claimed to be man and wife, and stayed all night in the same room. Held: Sufficient proof of sexual intercourse between the parties.

4. Same — Promise of Marriage not Necessary to be Repeated.

Where there has been a previous promise to marry made by the defendant, and the carnal intercourse of the parties was the consequence of such prior promise of marriage, it does not matter whether this promise was, or was not, repeated at the time the parties had such carnal intercourse with each other. If the previous promise was the cause of the illicit intercourse, that would be sufficient.

HURT, PRESIDING JUDGE.

Appellant was convicted of seducing Miss Addie Hardin, and appeals. It is insisted by counsel for appellant that the proof in this case fails to show that Addie Hardin was unmarried. She lived with her mother, Mrs. Adeline Hardin. She was called "Miss Addie Hardin." She received the addresses of the defendant. They were engaged to be married. This is sufficient proof that she was an unmarried woman. See, State v. Heatherton, 60 Iowa 175; 14 N.W. Rep., 230. Mrs. Hardin lived near the town of Van Alstyne, Grayson County. She swears that, for a month or two before Addie's death, defendant was frequently at her house, visiting her daughter, Addie Hardin. He came to her house about once a week during that time, to see Addie Hardin. They were engaged to be married. About two weeks prior to the death of Addie Hardin, appellant told her (Mrs. Hardin) that he and her daughter were going to be married, and asked her consent to the marriage, which she gave. This is sufficient proof that they were engaged to be married. Appellant contends that the evidence is not sufficient to show carnal intercourse between the parties. The State must show that the appellant had carnal intercourse with Addie Hardin. There can be no seduction without this. This, however, can be proved by circumstantial evidence. Ranzy McMakin testified "that, about the time defendant commenced going with Addie Hardin, I had a conversation down in the field one day, in which defendant said that he was going to have intercourse with Addie Hardin, but that he had no idea of marrying her. That was about three months before Addie Hardin's death." In this we find a desire on the part of the appellant to have intercourse with Addie Hardin. It is shown by the testimony that, when they went to the hotel in Van Alstyne, they claimed to be man and wife; and that defendant stayed all night with her in the room at the hotel. Here was a purpose and inclination to have intercourse with Addie Hardin, and there was an opportunity to accomplish that purpose. We believe the circumstances amply sustain that part of the charge, to-wit: that he did have intercourse with Addie Hardin. See, Bishop's St. Crimes, § 679. It is contended by appellant that there is no proof in this record to show that appellant referred to or repeated the marriage engagement between the parties when he obtained carnal intercourse with Addie Hardin, in the hotel at Van Alstyne; to state the proposition in a different form: that, to constitute seduction at the time the carnal knowledge was obtained, appellant must have then promised to marry the party seduced, or that he must have alluded to the contract of marriage; that it is not sufficient if the parties be engaged to be married, but the engagement or promise must be used at the very time that carnal knowledge was obtained. We do not concur in this contention. The record shows that the appellant was engaged to be married to Addie Hardin; that he had requested her mother to permit him to marry her, to which she had agreed. The record shows that, when they went to the hotel, both claimed to be man and wife. Now, we hold that, if the promise to marry was the moving cause — that is, if the carnal intercourse was the consequence of a prior promise of marriage — it does not matter whether this promise was repeated or not at the time the parties had carnal intercourse with one another. This question arose in Armstrong v. People, 70 N.Y. 38. In that case the prosecutrix testified that the promise of marriage was made in the latter part of May, and that the illicit intercourse took place on August 5th thereafter, at the house of Dr. Kimball. The Supreme Court of New York held that, if the promise made in May (being before the seduction) was the cause of the illicit intercourse, that would be sufficient. If the rule were otherwise, in jurisdictions in which the prosecutrix is not permitted to testify, it would be almost impossible to convict; and it would be a rare case, indeed, that proof could be made that the promise of marriage was made at the time of the intercourse, and, even if such proof could be made, it might smack strongly of barter and sale. At one time in this State the prosecutrix was not a competent witness; and, under that state of the law, prosecutions have been sustained, all the necessary elements of the crime being established by circumstantial evidence. We are of opinion that the proof is sufficient to establish the fact that Addie Hardin was seduced and led from the path of virtue by appellant, and that he had carnal intercourse with her. This being the case, the offense of seduction is complete. There being no errors in the record, the judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing, was overruled without a written opinion. — Reporter.]

R. L. BAILEY v. THE STATE.

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