Kennedy v. State

The appellant was convicted in the 94th District Court of Bexar County of the offense of seduction, and his punishment assessed at two and a half years in the penitentiary.

The theory of the State is that the appellant had intercourse with the prosecutrix, Mary Koscharek, under promise of marriage. The appellant admitted the intercourse, but denies the promise of marriage.

We find in the record seven bills of exception. Bills of exception 1, 2 and 6 are entirely in question and answer form, which under the statutes and holdings of this court we are unable to consider. Vernon C. C. P., Art. 846.

Bills 3 and 4 fail to show what objections were urged to the *Page 154 admission of the testimony complained of, and are insufficient in not setting out sufficient facts to show this court that said evidence was not admissible, otherwise, the ruling of the trial court thereon is presumed correct.

Bill 5 complains of the action of the court in refusing to instruct a verdict of not guilty. There is no merit in this contention.

Bill of Exception 7 complains of the action of the court in refusing to grant a new trial for alleged newly discovered evidence. This bill shows that the alleged newly discovered testimony is the testimony of Hon. W. S. Anderson, the Judge who heard the habeas corpus proceedings of this case and testimony of the prosecutrix thereon. This bill clearly shows that the testimony set out in the motion for new trial was introduced in said habeas corpus proceedings in the presence of the defendant, and could not possibly come under the head of newly discovered evidence, and said bill does not show any error in the ruling of the trial court in this instance.

Appellant complains for the first time in his brief to the court's charge to the jury, but the record discloses that there were no exceptions or objections urged thereto at the proper time, and for that reason we are unable to consider same.

The appellant contends that the evidence is insufficient to support the conviction in this case. We think the testimony of the State which was accepted by the jury makes out a case against the appellant, and that the evidence of the prosecutrix was sufficiently corroborated under the law.

We find no error in the record and 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.

ON MOTION FOR REHEARING.