1. Seduction — Testimony of Prosecutrix — Ex Post Facto Law. — On a trial for seduction, where the offense was shown to have been committed before the passage of the Act of 1891, permitting the seduced female to testify, held, that the court properly permitted the prosecutrix to testify, and that to do so would not be to make the said act ex post facto as to said offense.
2. Same. — A statute which enlarges the class of persons who may be competent to testify as witnesses is not ex post facto in its relation to offenses previously committed, since it only relates to modes of procedure in which no individual has a vested right, and which the State, on grounds of public policy, may regulate at pleasure.
3. Same — Charge of Court. — Where, on a trial for seduction, the testimony showed that for four years past tire reputation of the prosecutrix was bad; that before appellant's promise of Marriage was made she was generous and promiscuous in tier favors, and specific acts were also proved; held, that a charge to the jury which in effect instructed them, if they believed that defendant and prosecutrix were well acquainted with each other, and defendant, knowing the character of the prosecutrix hi the community, promised to marry tier, and subsequently seduced her by virtue of said promise, that, he could not avail himself of the character of the woman for want of chastity, was erroneous, because if the facts above stated were true, appellant was riot guilty of seduction, whatever may have been his civil liability for breach of promise.
SIMKINS, JUDGE.
Appellant was convicted of the seduction, under promise of marriage, of one Tina Gorzell, and sentenced to a fine of $2000, from which he appeals to this court.
1. Appellant complains that the court erred in permitting the prosecutrix to testify, because the crime, if any, occurred before the 14th of July, 1891, at which time the act took effect permitting the seduced female to testify, and the action of the court above stated was retroactive and ex post facto in its nature, in violation of the Constitution. Of course, it is not contended that the crime itself is thereby changed or aggravated, or a greater punishment inflicted. The only ground upon which the objection is based is, that it required less evidence to convict by permitting the seduced woman to testify. If this is true, it would be ex post facto. Calder v. Bull, 3 Dall., 389; Murray v. The State, 1 Texas Ct. App. 428[ 1 Tex. Crim. 428]; Holt v. The State, 2 Tex. 363 [ 2 Tex. 363]; Dawson v. The State, 6 Tex. 347.
It is certainly difficult to understand how opening new sources of light, or increasing the means of proving or detecting crime, can be said to require less evidence, or become ex post facto. In Hopt v. Utah, 110 United States, 574, the Supreme Court of the United States declared a statute which enlarges the class of persons who may be competent as witnesses not ex post facto in its application to offenses previously committed. It does not attach criminality to any act previously done, aggravate past crimes, or increase punishment therefor; nor does it alter the degree or lessen the amount or measure of the proof necessary for conviction. Removing restrictions upon the competency of certain classes of persons as witnesses relates to modes of procedure only, in which no one can be said to have a vested right, and which the State, on grounds of public policy, may regulate at pleasure. Laughlin v. Commonwealth, 13 Bush, 261. The objection is not well taken.
2. The appellant objects to the charge of the court to the effect that if the jury believe that defendant and Tina Gorzell were well acquainted with each other, and the defendant, knowing the character of the said Tina Gorzell in the community, promised to marry her, and subsequently seduced tier by virtue of said promise, he can not now avail himself of the character of the woman for want of chastity as a defense.
In Putman's case, 29 Texas Court of Appeals 457[ 29 Tex. Crim. 457], it seems to be held, that under Penal Code, article 814, there must be three concurring facts to constitute the crime of seduction as punishable by law: (1) A promise to marry; (2) seduction; and (3) carnal knowledge. Whether or not there can be such a thing as seduction without carnal knowledge, as asserted in the opinion, we think it is clear there can be a promise to marry and carnal knowledge without seduction; and that is when a woman has already lost tier virtue and reputation, and the promise of marriage only induces a change of lovers, whether the promisor knew it or not. The evidence shows, that for four years past the reputation of the prosecutrix for chastity has been bad; that before appellant's promise of marriage was made she was generous and promiscuous in tier favors; and specific acts were proved. If this testimony be true, appellant could not be guilty of seduction, whatever may have been his civil liability for breach of promise. Because the court erred in its charge as to the law, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.