Bronikowski v. State

LATTIMORE, Judge. — Appellant was convicted in the District Court of Washington County of seduction, and his punishment fixed at two years in the penitentiary. There is no dispute in the record of the fact that the prosecutrix was under twenty-five years of age, nor of the fact that appellant repeatedly had carnal knowledge of her, and the only-question on the facts was as to whether he obtained such carnal knowledge by a promise to marry the girl. She testified positively that he did, averring that he met her and made love to her and that she loved him and relied upon his promise to marry her in surrendering her person to him. The mother of prosecutrix testified that the third day after the birth of the baby of prosecutrix appellant came to see her and that witness was in the room where appellant and prosecutrix were talking; that they talked about marrying, and appellant said he wanted prosecutrix to have the baby baptized and named in the surname of prosecutrix but after they were married he would have the baby’s name changed to his name. She testified also that appellant had been going to see prosecutrix a long while before the date of the alleged intercourse and to his taking her to parties, dances, etc. Another witness testified that about the time appellant began going with prosecutrix she had a conversation with him in which she asked him why he brought prosecutrix to the dance where they were, in as much as he had been going with another girl, and his reply was that he “got it from Annie, and that was the reason he went after Annie. The witness said to him, “If you are doing-like that you have to marry her,” and that appellant replied he would marry her but he was afraid of Edna. This was in February 1923, — the alleged seduction having- taken place in November 1922. Another witness testified that before Christmas in 1922 he was talking with appellant about prosecutrix and that appellant said he was the “first one to that girl.” Witness said appellant meant by this that he was the first one who did anything to her, and also said thai appellant told him his last time with her was about three and one-half *602 months before the conversation. It was shown that the reputation of prosecutrix for chastity was good prior to the trouble with appellant. Appellant took the stand in his own behalf and testified that he first had intercourse with prosecutrix on an occasion when she and her brother came down to the home of appellant and stayed until about 9:30 o’clock at night, and that he and his sister walked part, of the way home with prosecutrix and her brother. He insisted that on this night prosecutrix begged him to have intercourse with her and he finally consented, and that afterward on several occasions he repeated the performance. On cross-examination appellant said that he went to the home of prosecutrix after the baby was born to see if prosecutrix wanted to marry him, and he testified that if she had said anything on that occasion he would have married her, and that he did not go back and marry her when she got well because she did not say anything. Asked as to his reason for wanting to marry her, he said it was because he did not want to have any trouble. Puri her in his cross-examination he said that he told prosecutrix and her mother that if she wanted to he was ready to marry her and that the girl did not say anything. In our opinion these facts sufficiently corroborate the testimony of prosecutrix as to the fact of her intercourse with appellant upon his promise to marry her. A bill of exceptions was reserved to the refusal of a continuance sought on account of the absence of the sister of appellant. We have examined the testimony set out in the application as expected from said sister and find in it nothing of any materiality in view of appellant’s admission on the witness stand that he did have intercourse with prosecutrix on the night referred to in the expected testimony of the witness. Bill of exceptions No. 2 complains of the admission of the conversation had by appellant with prosecutrix when he visited her shortly after the birth of her baby. We think the entire conversation and all that was said by appellant on said occasion admissible as shedding light on the proposition of his wishing to marry her and intending to marry her and having secured carnal knowledge of her under promise to marry her. Bill of exceptions No. 4 complains of the fact that during the argument of the case prosecutrix sat in the court room in view of the jury with her baby in her lap and that it was referrred to and pointed out by the State’s attorney in his argument, to the jury. It is insisted that this was indirectly putting the baby in evidence. We do not agree to the proposition. The girl had sworn that of her connection with appellant a child was born. This court has held that the mere holding of the child, alleged to be the result of the intercourse with the defendant, in the lap of prosecutrix, in the *603 presence of the'jury, while she was testifying, was not reversible error. It is not shown in the bill of exceptions that State’s counsel said anything in reference to the child or its resemblance or anything of that kind that could be regarded as out of the record. Complaint is made by bill of exceptions No. 5 of remarks made in argument for the State to _ the effect that if boys were permitted to do as appellant has done and be acquitted, the homes and daughers of others would be endangered and their daughters would not be safe. No request was made either in writing or orally that the jury do not consider such remarks, and ordinarily unless the remarks are so evidently calculated to prejudice the case as to be without question along this line, we do not hold them reversible in the absence of requested instruction to the jury not to consider same. The only remaining bill of exceptions was taken to the action of the court in overruling the motion for new trial, said motion not presenting any extraneous matters but merely made in the usual form complaining of things that transpired during the trial. Finding no error in the record, the judgment will be affirmed.