Herridge v. State

KRUEGER, Judge. The appellant was tried and convicted for the offense of seduction, and his punishment assessed at confinement in the State penitentiary for a term of two years. The testimony adduced upon the trial is substantially as follows: Prosecutrix testified: “I was 17 years of age on the 20th day of January, 1933. On or about the 25th day of June, 1931, I was engaged to the defendant to be married. No definite date was set but it was our understanding that I should attend school a few more years and he intended to go to school and learn to be a mechanic. That understanding took place and continued about 8 or 9 months prior to the first act of intercourse. Our first act of intercourse took place on or about the 25th day of June, 1931, at which time I had been going with the defendant for 8 or 9 months. I would not have allowed that act of intercourse had he not promised to marry me. That' was the consideration which caused me to yield to his request. In April, 1932, I gave birth to a baby girl. Harold Herridge is the father of that child.” On cross-examination she testified: “Harold also said that he would stay by me if anything should happen; that if I would have intercourse with him and if anything happened he would stay with me. He said that lots of times.” On re-direct examination she testified: “He told me that if I would have intercourse with him that he would stand by me and that if anything happened he would marry me before he went to school and I did submit to him.” The mother of prosecutrix testified that the defendant came to her home to see her daughter, the prosecutrix; that from the time he started going with her until some time between June 25th and July 1, 1931, she found out that they were engaged to be married. They had probably been going together over two months when the defendant asked her for the girl and she told him they could be married when they got old enough; that [286] they -were both just children. She further testified that she did not recall the exact time, after they began going together, when defendant first asked her for the girl, but it was something like two months; that he also said, “I want you to deed me Winona”; that she head them talking together, planning what they were going to do when they got married; that they were going to live out on a ranch by themselves; that they were not planning on being married at any definite date that she knew of. There was also evidence introduced showing that after the baby was born the defendant appeared at the home of the prosecutrix and offered to marry her if they would agree to keep it out of court, at which time the defendant saw the baby and remarked to the mother of prosecutrix, “I think Winona and I did pretty good. It is larger than I thought it would be.” The State also introduced some other testimony but the above and foregoing constitutes the essential part of the testimony making the State’s case. The appellant did not testify but offered some testimony indicating that the prosecutrix was an unchaste woman prior to the time of the act of intercourse charged in the indictment. The appellant contends that the testimony shows a conditional promise; conditioned upon something happening as the result of the intercourse. It is true that if the testimony had shown unequivocally that the promise of marriage was upon a condition that something happened to prosecutrix as the result of the intercourse, then it would not justify a conviction because under such state of facts prosecutrix did not surrender her virtue upon the promise of marriage but was willing to do so regardless of any promise of marriage so long as nothing happened, and if nothing happened she did not expect him to marry her. See Simmons v. State, 114 S. W., 841, and Muhlhause v. State, 119 S. W., 868. But the direct testimony of prosecutrix, makes a complete case and her re-direct testimony shows that if anything did happen as a result of the intercourse appellant was to marry her before he went to school. The issue thus raised was adequately and pertinently submitted to the jury by the court in his charge and the jury found that issue adversely to appellant. By bills of exception Nos. 1 and 2 the appellant complains of the action of the trial court in declining to permit the defendant to introduce Francis Morgan and Rex Greenwood as witnesses and prove by said witnesses that in the month of October, 1931, the witnesses saw the prosecutrix at night in company with one Joe Rouse on the road between Llano and [287] San Saba trying to fix a flat tire, and at said time the said Joe Rouse and prosecutrix were both drunk and prosecutrix cursed and abused said witnesses by telling them to “get the hell away from there,” to which testimony the State objected and which objections were by the court sustained and defendant excepted. We do not believe that the court committed any error in sustaining the objection of the State to said testimony in that said testimony did not shed any light upon the act of intercourse or the promise of marriage as charged in the indictment nor did it tend to refute the same, or tend to prove the want of chastity of prosecutrix. By bill of exception No. 3 appellant complains of the action of the trial court in commenting on the conduct of the witness Mrs. Jack Herridge. It appears that during the cross-examination of the witness Mrs. Herridge the district attorney presented to said witness a number of slips of paper, one of which was written by prosecutrix and others which contained the same words written by another party or parties, whereupon the witness selected a certain slip of paper from the several so exhibited to her and stated that the said slip of paper was in the handwriting of the prosecutrix. Thereupon the district attorney propounded the further question, “You would swear •that she (the prosecutrix) wrote that?,” to which the witness replied, “That is her handwriting,” whereupon the district attorney propounded the following question, “You say she wrote that (meaning prosecutrix) ?,” to which the witness replied, “I think she did,” whereupon the district attorney stated, “I want to know positively,” to which the defendant objected for the reason that the witness had answered the question, which objection was overruled by the court and the witness instructed to answer the question, to which the- witness said, “Some of the letters look like they were written by the prosecutrix and some do not,” whereupon the district attorney stated, “I want you to say positively ‘yes’ or ‘no,’ ” to which defendant objected that the witness had given a complete answer .to the question, to which the court replied in the presence and hearing the jury, “The court is of the opinion that this is an evasive answer.” The appellant’s contention is that the remark of the court in the presence and hearing of the jury was a comment upon the weight of the evidence and an invasion by the court of the province of the jury whose duty it was to weigh the credibility of the witnesses. We do not believe that the matter complained of is of such prejudicial nature as would require a reversal of this case. It is true that article 707, C. C. P., pro [288] vides: “In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.” It is apparent from the article above quoted that any comment by the court upon the weight of the testimony or cerdibility of the witness is an infringement of the legal rights of the accused on trial. However, it was said by this court in the case of English v. State, 85 Texas Crim. Rep., 457, that it is not every comment that requires reversal for the reason that all comments are not harmful, and the question whether the judgment is to be reversed is determined not upon the language used in making the comment or the fact that the comment is made, but upon the consequence which probably results therefrom. It is not apparent from the bill of exception that the matter about which the witness was testifying related to any material issue in the case. It is true that the district atorney exceeded the latitude allowed him by the rules of evidence in his endeavor to require the witness to answer “yes” or “no” when the best the witness could do is to express an opinion from her knowledge of and familiarity with the handwriting of the prosecutrix. It is evident that the witness did not see prosecutrix write the letter and therefore could not give a direct and positive answer but could merely express her opinion. The court was also in error when he said, “This is an evasive answer” because it was not an evasive answer as the witness could only express her opinion based upon her knowledge of and familiarity with the handwriting of prosecutrix. The court in making the remark complained of infringed upon article 707, C. C. P., yet we are forced to the conclusion that inasmuch as the witness at no time gave any testimony which was material to any defensive theory of appellant, therefore said comment on the part of the court could not have prejudiced the rights of the appellant. No error appearing in the record, the judgment of the trial court is affirmed. Affirmed. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.