At a former day of this term this case was affirmed, and appellant's attorneys have filed a motion for rehearing, in which they vigorously insist that this court erred. There are one or two expressions in the motion out of the ordinary, and to which we will have occasion to refer in the opinion. We copy them here. It is said:
"It is with some degree of modesty that counsel for appellant approaches a discussion of the complaints made to the opinion of affirmance. We feel that it is an effort to convince an unwilling mind of the correctness of the position taken. We trust, however, that the slight discord now existing in this honorable court, and well known to the bar of this State, shall in no manner militate against that fair consideration of the propositions embodied herein to which we know they are entitled.
"We feel that the opinion does counsel for appellant a slight *Page 564 injustice in refusing to consider the assignment presenting the misconduct of the jury, as well as the criticism to the court's charge upon accomplice testimony. . . .
"We have endeavored to cite such authorities as are directly applicable to each proposition, and have covered the questions as carefully as we could. It is not so much that this man should be restrained for three years, but the punishment and violence that will be done to the criminal jurisprudence of this State, should this case be affirmed, that becomes paramount. Surely Hurt, Willson, White, Henderson, Brooks, Davidson and Ramsey are not myths, and surely the best part of the life, intellect and energy of each has not been devoted to the establishment of a criminal jurisprudence of this State of which it is proud, that must now at the stroke of a pen be completely abolished."
As appellant complains that this court did him an injustice in two particulars, we will discuss them first.
1. As to the assignment presenting the question of the misconduct of the jury, in that it is alleged that the jury discussed the failure of defendant to testify, this allegation is not supported by the affidavit of a single juror or any other person. The district attorney filed a contest, and states "the State denies all and singular such allegations, and holds the defendant to strict proof of the same, and in answer to such allegations say that no such misconduct occurred as therein stated." In the record there is no evidence in support of the allegation contained in appellant's motion, filed either during term time or after term time. Court adjourned January 21, 1911, and on March 16 appellant filed a bill of exceptions relating to this matter, but in this bill there is not included the testimony of a single witness, if any testified. If the bill had been filed in term time it should have presented the testimony, for we can not review the action of the court without having the evidence before us. But this bill was not filed until about sixty days after court adjourned, and it has been held that our statutes permitting bills of exception and statement of facts after term time, have no reference to issues of fact formed on grounds set up in the motion for new trial. As counsel seem to think that if this rule of law was announced by the able men who preceded us, then no one has cause for complaint, consequently we will only cite opinions written by them, and, of course, counsel would not expect us to give our sanction to any rule of law that would tear down and overrule the criminal jurisprudence of this State, and of which it is proud, to which they devoted the best part of their lives, intellect and energy to establish. The right to file any paper after the term of court is statutory, and if it is not found written in the statute, no authority to do so exists; and in the case of Black v. State, 41 Tex.Crim. Rep., our eminent presiding justice, Judge Davidson, well expressed this thought. In that case he says, in discussing the question here involved: *Page 565
"It is evidence to our minds that these statutes refer exclusively to the statement of facts adduced on the trial of the case itself, and have no application to issues of fact formed on grounds set up in the motion for new trial. Except where the statute makes provision for the filing of papers, which shall become a part of a record on appeal, after the adjournment of court, these papers must all be filed during the term. Our statute has not made provision for the filing of evidence, either `affidavits or otherwise,' which is adduced for the purpose of sustaining grounds of the motion for new trial, and we are not cited to any cases which so hold. Nearly every ground set out in the Code of Criminal Procedure which forms the basis of a motion for new trial involves matters of fact, and is the subject of contest. While this is true, the statute has not gone further, and provided, as in statement of facts, that this evidence can be filed after the adjournment of court. Nor could a statement of the evidence adduced upon the trial be so filed, except for the warrant of the statute above mentioned. It seems that a contest may be had on the motion for new trial as to the diligence of a defendant in seeking an application for continuance. This may be determined by evidence, and this may be adduced when the action of the court refusing the continuance is called in question by the motion for new trial. But it has been universally held, so far as we are aware, that the action of a court overruling an application for continuance must be perpetuated by bill of exceptions. We take it the same rule applies when the misconduct of the jury is alleged, or when the allegation is that the verdict has been decided by lot, or when a juror has received a bribe to convict, or that he has been guilty of any other corrupt conduct, or that any material witness for the defendant has been, by force, threats or fraud prevented from attending court, or where written evidence tending to establish the innocence of the defendant has been intentionally destroyed or removed so that it could not be produced upon the trial, and where newly discovered testimony is alleged. But these matters must be made part of the record during the term of court. There is no statute authorizing such matters to be perpetuated in papers filed subsequent to the term."
As said before, this opinion was written by Judge Davidson, and it may be added that it was sanctioned and approved by Judges Brooks and Henderson, and they say: "These matters must be made of record during the term of court — there is no statute authorizing such matters to be perpetuated in papers filed subsequent to the term." For other opinions by Judge Davidson to the same effect see Tarllton v. State, 62 S.W. Rep., 748; Reinhard v. State, 52 Tex.Crim. Rep.; for opinions by Judge Brooks see Mikel v. State, 43 Tex.Crim. Rep.; Jarrett v. State, 55 Tex.Crim. Rep.; for opinions by Judge Ramsey see Probest v. State, 60 Tex.Crim. Rep.; Williams v. State,56 Tex. Crim. 225. When Judge Ramsey wrote the opinion in the Probest case, Judge Brooks had *Page 566 retired, and Judge McCord was a member of the court, and while not cited by appellant as one of the eminent jurists who had preceded the present court, yet he gave this rule of law his sanction and approval, and no judge who has occupied a position on this court has held otherwise since its organization.
2. As to the second proposition above referred to by appellant, the charge on accomplice testimony, about which in the body of the brief he says, "The criticisms to the court's charge referred to in the motion for new trial as contained in bill No. 32, are embodied in bill No. 26, there being no such bill in the record as No. 32, and certainly appellant can not be bound by a clerical misunderstanding of the bill." We are glad appellant concedes that the opinion was correct in stating that there is no bill No. 32 contained in the record, and we will concede that appellant could not be bound by a clerical misunderstanding in numbering the bills. But is there any criticism in bill No. 26 of the court's charge? Although the bill is lengthy, for fear float counsel might say we had not correctly stated the record, we will quote bill No. 26 in full:
"Be it remembered that upon the trial of the above entitled and numbered cause, as soon as the court had read and delivered its main charge in writing to the jury, the defendant then and there objected and excepted to the entire charge of the court to the jury, which said charge is as follows, to wit:
"Gentlemen of the jury: The defendant, John Knight, is on trial before you charged with the offense of seduction, which charge is fully set out in the indictment, which has been read before you. The defendant had plead not guilty to said charge, and the burden of proof to establish his guilt by legal and competent evidence, beyond a reasonable doubt, rests upon the State, and he is presumed in law to be innocent until his guilt is so established, and in case you have a reasonable doubt as to his guilt you will find him not guilty. You are the sole and exclusive judges of the facts proven, the weight and value of the testimony and the credibility of the witnesses, but the law you get from the court in this written charge and such special charges as may be given you, and you are bound to be governed thereby.
"You are instructed that if any person by promise to marry shall seduce an unmarried female under the age of twenty-five years, in this State, and shall have carnal knowledge of such female, he would be guilty of the offense of seduction. The term seduction is used in the sense in which it is commonly understood. It is the leading of an unmarried female under twenty-five years of age out of the path of virtue by a promise of marriage.
"The punishment for seduction is imprisonment in the penitentiary for any term not less than two nor more than ten years.
"You are instructed that the witness, Annie Slaughter, is an accomplice and you can not convict the defendant upon her *Page 567 testimony, however true you may believe it to be, unless the same is corroborated by other evidence in the case besides her own. And the corroboration is not sufficient if it merely shows the commission of the offense, but it must go further and tend to connect the defendant with the commission of the offense.
"In order to constitute the offense of seduction the female must be under the age of twenty-five years and unmarried, and also the defendant must have obtained carnal knowledge of such female under a promise of marriage; that is to say, the female must rely on the promise of marriage and must have yielded her person to the defendant and must have had intercourse with him upon her reliance of a promise of marriage made either at the time the carnal knowledge was had or at some previous time. If the parties were engaged to be married to each other before the act of intercourse, and on account of this engagement and because the female relied upon the same and under such circumstances defendant procured carnal knowledge of the said Annie Slaughter, the crime of seduction would be complete, although the promise to marry was not repeated at the time of the intercourse.
"There are two steps to be taken in order to constitute the offense of seduction:
"First, the female must be induced to yield her person to the man by reason of his promise to marry her, and second, the female must be carnally known by the man, by reason of such promise to marry.
"You are instructed that time is not the essence of a criminal offense, and while the indictment in this case charges the offense to have been committed on or about May 20, 1910, still if the defendant committed the offense of seduction (as the offense has been herein defined to you) at any time within three years before the 6th day of January, A.D. 1911, the date of the filing of the indictment in this cause, the allegation as to time in the indictment would be met.
"In this connection you are instructed that a woman can be seduced but once, and you can not convict the defendant for seduction in this case by reason of intercourse with her on May 20, if any he had or by reason of any intercourse with her, subsequent in their first act of copulation, if any there was, and any such subsequent acts of copulation, if any between the defendant and Annie Slaughter, after the first act of copulation, if any there was, can be considered by you only along with the other evidence in the case in passing upon the guilt or innocence of the defendant, of the offense charged, by reason of their first act of copulation, if any there was.
"By corroborative evidence in this case is meant: Some evidence outside of and independent of the testimony of Annie Slaughter, which tends to show that the defendant, John Knight, had sexual intercourse with her by virtue of a promise to marry her, then or previously made, as heretofore instructed. *Page 568
"And both the promise to marry as well as the sexual intercourse must be corroborated to warrant a conviction.
"Keeping in view the foregoing general instructions, as to the law and the evidence, you are further instructed that if you believe beyond a reasonable doubt that defendant John Knight did in San Augustine County, Texas, at any time within three years, before the 6th day of January, 1911, the date when the indictment in this case was presented and filed in this court, seduce Annie Slaughter, who was an unmarried female under the age of twenty-five years at the time, and did then and there obtain carnal knowledge of said Annie Slaughter by means and in virtue of a promise of marriage to her, the said Annie Slaughter, previously made by him, the defendant, the said John Knight, then you will find the defendant guilty as charged in the indictment of the offense of seduction and will assess his punishment at a term in the penitentiary not less than two nor more than ten years.
"Upon the other hand, under the foregoing general rules of law and the evidence if you have a reasonable doubt of the guilt of the defendant you will find him not guilty.
"If you find the defendant guilty the form of your verdict will be: `We, the jury, find the defendant, John Knight, guilty of the offense of seduction as charged in the indictment and assess his punishment at confinement in the penitentiary for a term of _____ years.' Filling in the blank with such term, as you may assess not less than two nor more than ten years. If you find the defendant not guilty, you will simply say so.
"Which said charge is erroneous for the following reasons, to wit: 1st. Because the indictment charges the defendant with seduction of the prosecutrix, Annie Slaughter, of date the 20th day of May, A.D. 1910, and defendant was called upon to answer said charge as predicated upon said transaction, and the prosecutrix testified that defendant had intercourse with her on the said 20th day of May, A.D. 1910, by virtue of a promise of marriage, and that she submitted her person to the defendant because she was afraid that if she did not, the defendant would not marry her, and the case was tried upon the theory that the defendant was guilty of seduction based upon said transaction, but said charge authorized the conviction of the defendant for another and different transaction, happening some sixteen months prior to the date charged in the indictment, to answer which the defendant was not called upon and allowed the conviction of the defendant upon such other, or any other, transaction from that charged in the indictment.
"2d. Because said charge as a whole is argumentative, upon the weight of the evidence, and gave undue prominence to the State's theory, and assumed, as a matter of fact, that the defendant at some time had intercourse with the prosecutrix, Annie Slaughter, by virtue of a promise of marriage, and assumed, further, as a matter of fact, *Page 569 that the prosecutrix, Annie Slaughter, was corroborated by evidence tending to show defendant's guilt.
"3d. Because said charge is contradictory and confusing, in that — in paragraphs 8 and 9 the jury is told that time is not of the essence of the offense, and that defendant could not be convicted upon the transaction alleged in the indictment on May 20, 1910, and testified to by the prosecutrix, or upon any act subsequent to the first act, but charged the jury that it could consider any such subsequent act as corroborative of the testimony of the prosecutrix, whereas, in paragraph 11 of said charge in the application of the law to the facts the jury is told that they can convict upon any transaction happening within three years from the date of the presentation of the indictment, to wit: On the 6th day of January, 1911, thereby authorizing the conviction of the defendant upon the act of May 20, 1910, or upon any act happening within three years, thus in one instance telling the jury that it could not convict upon the transaction of May 20, 1910, or upon any transaction subsequent to the first act, while in the other instance telling the jury that it could convict upon any transaction happening within three years prior to the 6th day of January, A.D. 1911.
"4th. Because the court in its said charge ignored the defendant's right to have the jury instructed that the prosecutrix must have relied upon an unconditional promise of marriage, and must have been chaste at the time, and that she did not submit her person to defendant because of her lust or desire, the evidence in the case raising these issues in such a way as entitled the defendant to a clear, distinct and an affirmative charge, submitting the same to the consideration of the jury, and defendant here now tenders this his bill of exceptions No. 26 to the entire charge of the court on account of the said errors, and asks that the same be signed, approved and filed as a part of the record in this cause. Which is accordingly done, with the qualification that when the court read the charge the counsel for defendant excepted to the same by saying to the court that he excepted to the charge generally, and gave no specific reason for the same. This should also be an assignment of error if permitted in the record at all and not a bill of exceptions, no reason was given.
W.B. Powell, Judge."
Filed March 16, 1911.
If there is any criticism of the charge on accomplice testimony we have failed to find it. Nor is there in any other portion of the record any error pointed out in the charge on accomplice testimony. In appellant's brief he seeks to assign errors not in the record, but all the judges to whom he refers hold that this can not be done since the Legislature has amended article 723 of the Code of Criminal Procedure.
In Flournoy v. State, 57 Tex.Crim. Rep., Judge Davidson *Page 570 says: "There are some other criticisms of the court's charge in the brief which are not mentioned in the motion for new trial, nor were exceptions taken to these matters on the trial. As thesematters are presented they can not be considered."
In Eckermann v. State, 57 Tex.Crim. Rep., he said: "There are several questions presented in the brief of appellant with relation to the charge, to none of which was any exception reserved, either in the motion for new trial or during the trial. These matters can not therefore be considered." See also Holmes v. State, 55 Tex.Crim. Rep., 116 S.W. Rep., 571; Reyes v. State, 51 Tex.Crim. Rep.; Wilson v. State, 52 Tex. Crim. 173; Pena v. State, 38 Tex.Crim. Rep..
Judge Brooks says: "Appellant in his brief excepts to the 21st paragraph of the court's charge. We find no exception or complaint in the motion for new trial, and same can not be considered. In the absence of a bill of exceptions or a ground in the motion for new trial urging defects in a charge, this court is not authorized to reverse a case." Joseph v. State,59 Tex. Crim. 82, 127 S.W. Rep., 171; Sue v. State, 52 Tex. Crim. 122; Manning v. State, 46 Tex.Crim. Rep., 81 S.W. Rep., 957; Barnett v. State, 42 Tex.Crim. Rep.; Glascow v. State, 100 S.W. Rep., 933.
Judge Ramsey, in the case of Pollard v. State, 58 Tex. Crim. 299, 125 S.W. Rep., 390, says: "Under the law of this State, before we are authorized to review the correctness of a charge, either by bill of exceptions or motion for new trial same must be objected to, and the particular error pointed out. This the bill does not do." Other opinions by Judge Ramsey: Benevidas v. State, 57 Tex.Crim. Rep.; Duncan v. State,55 Tex. Crim. 168, 115 S.W. Rep., 837; Keye v. State,53 Tex. Crim. 320.
For opinions written by Judge Henderson, see Bailey v. State, 45 S.W. Rep., 708; Magee v. State, 43 S.W. Rep., 512; Spears v. State, 41 Tex.Crim. Rep., 56 S.W. Rep., 347.
For opinions written when Judges White, Willson and Hurt composed the court, see Smith v. State, 22 Texas Crim. App., 316; Davis v. State, 14 Texas Crim. App., 645; Mace v. State, 9 Texas Crim. App., 110; Hart v. State, 21 Texas Crim. App., 163; McLin v. State, 29 Texas Crim. App., 171.
For an opinion by Judge McCord, see Kubacak v. State,59 Tex. Crim. 165, 127 S.W. Rep., 836, and for the views of this court that have always governed it in this matter, see Quintana v. State, 29 Texas Crim. App., 401, where Judge Davidson expresses the rule in terse language.
In the motion for new trial or in no bill of exceptions did appellant call the attention of the trial court to any error in the charge on accomplice testimony, and the decisions of all the judges who ever occupied a place on this court since the amendment to article 723, *Page 571 hold that if the error, if error there be, is first called attention to in brief of counsel, it can not be considered by this court. To do otherwise would be for this court to violate the plain provisions of the statute. We have not collated near all the decisions, but at random have selected some writen by the judges to whom appellant refers to in his motion as establishing a criminal jurisprudence of which this State is proud.
3. The next ground in appellant's motion is that we erred in holding that the remarks of Mrs. Mattie Goldsberry were admissible. The part of Mrs. Goldsberry's testimony (which is copied in full in the original opinion) that objection was reserved to is, that the witness said, when Mr. Crockett told her defendant desired to talk to Miss Slaughter in his presence alone, "that she did not think they had any talk coming — all they needed was a marriage license and a preacher," the objections being it "was a conclusion and opinion of the witness, and was not such statement as called for reply on the part of defendant, and was prejudicial in that the jury would accept it as proof of guilt of defendant of the offense charged." If the jury would accept it as proof of guilt of defendant, then it occurs to us that it was such a statement as called for a reply from defendant. However, in his motion for rehearing appellant now says: "Her statement was but the expression of an opinion not that there had been criminal intimacy between the two, but merely that she thought they ought to get married." In the bill he states that the jury would accept it as proof of defendant's guilt of the offense of seduction, and if it had no such meaning and tendency, we fail to see how its being admitted in evidence could have been harmful. Either it charged appellant with the commission of the offense, or it would be a harmless remark. But under the record and the bill we think it specifically charged appellant with having seduced Miss Slaughter. In the bill and in the record it is shown that appellant had a complaint filed against him charging him with the seduction of Miss Slaughter; that an examining trial was held, and he was bound over to the grand jury to answer this charge. On Thursday following the trial the first of the week he called Miss Slaughter and requested an interview; she went with Mrs. Goldsberry (her aunt) to the home of Mr. Crockett (his relative) to have this interview. When Miss Slaughter and her aunt arrived at Mr. Crockett's, the aunt was informed she could not be present during the interview, but only Miss Slaughter, defendant and his relative, Mr. Crockett. Her aunt, Mrs. Goldsberry, objected to this, and stated all that was needed was a marriage license and preacher. Appellant, being under a charge of seducing this young lady, and bound over to the grand jury on such charge, could and did know why Mrs. Goldsberry thus addressed him, and that a marriage license and preacher were needed because of his conduct. It made a direct charge in appellant's presence, and yet he did not say then he had not promised to marry the young lady, did *Page 572 not say that the charge she had brought against him was untrue, or make any statement to indicate that he was being wrongfully prosecuted, or tended to show that he was innocent of the offense.
In the case of Browning v. State, 26 Texas Crim. App., 432, Judge Willson says, when the court was composed of himself, Judges Hurt and White: "A sister of the deceased came up while appellant was sitting on his mule at the gate. Defendant sees her and starts to go; she charges him with the murder; those standing by heard the charge; he must have heard it, yet he does not deny — does not say one word in answer to the charge, but rides hurriedly away. His silence and conduct are an admission of the truth of the accusation," citing Whart. Crim. Ev., 8th ed., sec. 680; Tyler v. State, 11 Texas Crim. App., 388. For other opinions so holding by Judges White, Willson and Hurt see Clement v. State, 22 Texas Crim. App., 23; Conner v. State, 17 Texas Crim. App., 1; Sauls v. State, 30 Texas Crim. App., 496; Moore v. State, 15 Texas Crim. App., 1; Holden v. State, 18 Texas Crim. App., 91.
In the case of Rice v. State, 49 Tex.Crim. Rep., Judge Henderson says: "The fact that she accused her husband with the administration of the drug through the syringe might he an opinion or conclusion and not a fact within her knowledge. But this, it seems to us, would be admissible upon the ground that it was a charge directed against him, and which he was called upon to answer; and the fact that he did not might be taken as a circumstance against him, suggestive of a consciousness of guilt." See also Bennett v. State, 39 Tex.Crim. Rep., 48 S.W. Rep., 61.
In the case of Rice v. State, 54 Tex.Crim. Rep., Judge Brooks upholds the above opinion of Judge Henderson, and in the latter case cites a number of authorities. See, also, Smith v. State, 44 Tex.Crim. Rep..
In the case of Davis v. State, 54 Tex.Crim. Rep., Judge Ramsey says: The witness testified: "Mr. Hale and I were standing by the stair-steps leading up to the Cummings House, and I called him to me. I told him that his folks were accusing him of murdering my sister, and I wanted him to straighten it up, and he said they would tell me plenty of damn lies. His step-father, Mr. Hale, was standing there, and said: `You can accuse them of telling damn lies, that it was the truth and you know it,' and the defendant made no reply to this. This testimony was clearly admissible."
For an opinion of Judge McCord holding this character of testimony admissible, see Elliot v. State, 58 Tex. Crim. 200, 125 S.W. Rep., 568.
In the case of Humphrey v. State, 47 Tex.Crim. Rep., in an opinion by Judge Davidson, the following testimony is held to be admissible: "I said: `What is the matter?' Angelina Wooten replied, `Mack has ravished Eunice.' Defendant was shown to be present and made no reply." And in the case of Stanley v. State, *Page 573 48 Tex.Crim. Rep., Judge Davidson, speaking for the court, says:
"Link Arnold was permitted to testify that on the night after Beckham was shot, defendant was at his home, and about 11 o'clock he said to defendant that Spot Jordan and Lovell had been at his (witness') house that night, and told him that defendant had been accused of the shooting of Beckham the night before. He further said to defendant that Jordan had told him (witness) in said conversation that he had just come from old man Bill Stanley's house (father of appellant) and that old man Stanley told Jordan that defendant did not stay at his (father's) house on Friday night; that being the night that Beckham was shot; and that the father of defendant told Jordan that defendant stayed all night at Link Arnold's on Friday night — the night that Beckham was shot. Objection was urged to the introduction of this evidence on the ground that it was hearsay; was not the evidence of Bill Stanley, but the statements of the witness Arnold, purporting to be a statement made by Jordan to Arnold, and told by Arnold to defendant. We do not believe this comes within the rule of hearsay. These conversations were reported to appellant in person and called on him for a reply, in regard to the alibi. The theory of appellant was an alibi, and that he stayed at his father's house the night of the shooting. Here was the statement of the father brought home to appellant denying that fact. If the statements had been made in the absence of the defendant, and not brought home to him, the question of hearsay would have been clearly in the case. But when these statements were actually brought home to his attention, and repeated to him in person, it occurs to us that it was legitimate to be shown the jury." For other opinions by our presiding judge see Brown v. State,32 Tex. Crim. 119; Johnson v. State, 47 Tex. Crim. 523; Williams v. State, 53 Tex.Crim. Rep.. We might quote opinions written by the present members of the court, such as Lagrone v. State, 61 Tex.Crim. Rep., 135 S.W. Rep., 122, but judging by the tone of appellant's argument he would not consider them authoritative, and we content ourselves with referring to the opinions of the eminent judges whom he names.
4. The next ground in the motion is that the court erred in admitting the statement of defendant when he said that "he was not monkeying with `coons' — that he was going into the best parlors in the town where he was getting better stuff than that." In the case of Hinman v. State, 59 Tex.Crim. Rep., 127 S.W. Rep., 221, when the court was composed of Judges Davidson, Ramsey and McCord, in speaking for the court, Judge Ramsey says:
"It is claimed that the court erred in permitting the witness Mills Davenport to testify to statements made by appellant, in substance, to the effect that he was the cause of Miss Barefield being in a pregnant condition, and also a statement to Davenport to the effect, in *Page 574 substance, that he contemplated stealing a girl and invoked his assistance. These statements, we believe, were admissible on the issue: First, that appellant had had carnal intercourse with the prosecutrix; and, second, for the purpose of corroborating the prosecutrix on the issue of their engagement. Davenport testified that some time in the spring of 1906 appellant, in a conversation with him, stated that he was expecting to steal a girl, and might want some help, and that this conversation was had at a time when appellant was going with the prosecutrix. It was shown also by the testimony of Miss Barefield that her father objected to the defendant coming to his house and keeping company with her. J.R. Davis testified that the defendant came to him some time in the spring of 1906 and requested him to bring the prosecutrix to Eastland, stating that he (the defendant) intended to marry her, that her father was bitterly objecting, and that he desired his assistance. In view of the relations of the parties, their frequent association, and the fact that several of the witnesses say that appellant was madly in love with Miss Barefield, and in the absence of any testimony that his remark about stealing a girl could have had application to anyone else, we think it is so connected with, and had such evident and certain relation to, Miss Barefield as to render it clearly admissible."
In this case the testimony shows that appellant had carnal knowledge of Miss Slaughter twice in the parlor of her father's residence. It shows that she belongs to as good a family as lived in the town. She was the only girl that the record discloses to whom he was paying attention and with whom he had intercourse in the parlor, and as said in the Hinman case, supra: "In the absence of any testimony that his remarks about stealing a girl could have had application to anyone else, we think it so connected with, and had such evident and certain relation to, Miss Barefield as to render it clearly admissible." In this record it is further shown that appellant told this witness subsequently that "he had gotten Miss Slaughter knocked up." We discussed this question so fully in the original opinion that we do not deem it necessary to again do so further, as all the authorities that appellant refers us to relate to threats and not to cases of this character, when the prosecuting witness must be corroborated, and it is possible to do so only by circumstantial evidence. The above quotation is directly in point, and in the original opinion will be found decisions by all the judges to whom he refers.
5. The next ground of appellant's motion is that we erred in holding that the testimony of Mrs. H.J. Matthews and others admissible. These witnesses were permitted to testify that the reputation of Miss Slaughter for virtue and chastity was good. Appellant in his motion states that we refer to no Texas authorities. We might retort in kind and say he refers to no Texas case for authority that such testimony is inadmissible. But we think he is in error in saying that in the original opinion we referred to no Texas cases. In the sixth *Page 575 paragraph of the opinion will be found a long list of cases decided by this court, and by the eminent judges to whom he refers. In the case of Jeter v. State, 52 Tex.Crim. Rep., when this court was composed of Judges Davidson, Henderson and Brooks, Judge Davidson, in speaking for the court, says:
"Harper testified for the State, among other things, to the good reputation for chastity of the prosecutrix. A bill of exceptions is signed by the court showing this condition in regard to this witness' testimony: That he would have on cross-examination testified that the general reputation of the sister of prosecutrix for chastity with whom Ella Taylor lived and associated was bad and had been bad for two or three years before this trouble came up, and that witness knew of his own knowledge of her unchaste acts. This testimony was excluded. The court would not even permit counsel for appellant to make any statement as to why said testimony was material or what witness would testify. The court qualifies the bill as follows: `The sister of prosecutrix, whose reputation was inquired about, lived with her father and mother (and the testimony so showed without contradiction). The prosecutrix also lived there, and the court being of the opinion that a girl of prosecutrix' age was not compelled to abandon her home nor were the father and mother compelled to ostracize one wayward daughter in order to avoid an aspersion upon the character of another and therefore sustained the objection.'
"Another bill in regard to this same witness, in substance, is as follows: That Harper was the third witness for the State and testified that he knew the general reputation of the prosecutrix for chastity and that it was good. He was then asked by the defendant if he had a conversation with Bud Jeter on his gallery at Elm Grove before this trouble came up, in which he stated that the reputation of the Taylor girls for chastity, meaning Ella and her older sister, living with her in her father's family, was bad. The witness answered that he had the conversation at the time and place mentioned, and that he only stated that the reputation of the older sister of prosecutrix was bad. On motion of the district attorney, and over appellant's protest, the court withdrew the answer from the jury, and instructed them not to consider it as evidence. Counsel protested against the action of the court and offered to submit an authority to the court in support of the admissibility of said testimony, and the court stated in the hearing of the jury that he did not care to hear from counsel on any authority on that point, to which action of the court in excluding said testimony of the witness, Harper, from the jury and refusing to permit defendant to attempt to show the admissibility of said evidence, the defendant then and there excepted, etc.
"In regard to the first bill of exceptions, we are of opinion that it was admissible. The facts show that the older sister had a bad reputation, and that she and the prosecutrix were in the habit of going to social gatherings in the neighborhood unattended by any male *Page 576 friend, but on their return from these gatherings the young men would attend them home. See Caviness v. State, 42 Tex. Crim. 420. In the Caviness case it was proposed to be shown that the prosecutrix lived at the same house and associated with her two sisters and niece; that they were women of bad reputation, and that they were delivered of illegitimate children. On objection of the State this testimony was excluded. It was offered as tending to prove the real character of the seduced female. The prosecutrix in that case was delivered of a fully developed child in February, 1900. The court said in that case, `If she was an associate of these women at the time indicated, it would be a fact tending to show her character for want of virtue and chastity.' See also Mrous v. State, 31 Tex.Crim. Rep.. It was held in that case the evidence should have gone to the jury. . . .
"In regard to the second bill, it is shown that evidence was introduced through the witness Harper that he had stated to Bud Jeter that the reputation of the older girl, prosecutrix' sister, was bad, limiting his statement of bad reputation alone to the older sister. The court withdrew the answer of the witness and instructed the jury not to consider it and for the same reason stated by the court for the rejection of the testimony in the bill above discussed. We think this testimony was properly admitted and ought not to have been withdrawn."
In the case of Caviness v. State, 42 Tex.Crim. Rep., Judge Davidson again writing the opinion, it is held: "Asked if she did not then associate with them generally. This she affirmed. It was then proposed to prove by her that it was a fact that while so associating with these women each of them were delivered of illegitimate children. This was ruled out on objection by the State. This evidence was offered as tending to prove the real character of the seduced female. The prosecutrix was delivered of a fully developed child in February, 1900. If she was the associate of these women at the time indicated, it would be a fact tending to show her character for want of virtue and chastity."
The rules of law applicable to the admissibility of testimony are the same whether the State is offering the testimony or the defendant. There is no law which would permit the defendant to offer certain character of testimony and which would exclude the State from doing so. As said in the original opinion, under our decisions the character for virtue and chastity of the alleged seduced female is an issue from the inception to the ending of the case, and if a defendant can prove to the satisfaction of the jury that the alleged seduced female was not a chaste woman, or create in their minds a reasonable doubt of that fact, he, under our law, would be entitled to an acquittal. Consequently it is an issue of fact in every case and it is incumbent upon the State to make the proof that she is a virtuous and chaste woman. In this State it seems under the above decisions *Page 577 that even the reputation and acts of her sister can be proven, and certainly if that is the law no one would contend the reputation of the prosecutrix could not be proven. In the case of State v. Hill, 4 S.W. Rep., 121 (a Missouri case), it is held: "There was no error in allowing the State to prove the good repute of the prosecuting witness, as a part of the case of the State. Good repute is made an element of the offense by the statute, and as both parties are presumed to be innocent, the better conclusion seems to be, it is said that some such evidence should be brought forward in the first instance. (Bishop St. Crimes, 2d ed., sec. 648.) Mr. Bishop states this to be the rule under statutes which make `previous chaste character' an element of the offense." While our statute does not mention `good repute' or `previous chaste character,' yet the decisions of this court have written into the law of seduction both good repute and previous chaste character, for if a person seduce a female by promise of marriage, and this fact is proven beyond doubt, yet if he can create a doubt in the minds of the jury she was not at the time he committed the offense of good repute and chaste, he may plead it as a defense to be submitted to the jury, thus making her previous wrongdoing a defense for a crime committed by himself." For other decisions see section 6 of the original opinion, including Texas cases.
6. These are all the assignments in the motion except some that relate to the charge of the court. We have copied hereinbefore bill No. 26 in which the charge of the court is presented. In the first place, by the qualification of the court as shown by the copied bill, the court says: "With the qualification that when the court read the charge the counsel for defendant excepted to the same by saying to the court that he excepted to the charge generally. No reason was given." But by an unbroken line of authorities in opinions delivered by the various eminent judges named by appellant, noted above, this court has held that when a person accepts a bill as qualified by the court, he is bound by the qualification. (Hardy v. State, 31 Tex.Crim. Rep.; Levine v. State, 35 Tex.Crim. Rep.; Brown v. State,32 Tex. Crim. 119; Boyett v. State, 2 Texas Crim. App., 93; Lindley v. State, 11 Texas Crim. App., 283; Blain v. State,34 Tex. Crim. 448; Burt v. State, 38 Tex.Crim. Rep., and cases collated in White's Annotated Code of Criminal Procedure.) The qualification further states the objections urged in the bill should have been assigned as error. In the motion for new trial there are no such errors assigned as appellant presented in the brief and now presents in his motion for rehearing. In the case of Phillips v. State, 19 Texas Crim. App., 165, when Judges White, Hurt and Willson composed the court, it was held: "In criminal cases we are not aware that the exceptions to the charge required to be noted should point out and specify particularly the objectionable *Page 578 portion or portions excepted to at the time of asking leave to reserve exceptions. This is scarcely practicable. To make specific objections in a majority of cases requires time and a thorough scanning of the language used in the charge. All that is required is that general exceptions be taken at the time, with request for time to prepare a bill containing the specific objections, to be prepared before the verdict is returned in order that the court may have an opportunity to correct the charge if so desired." Upon Presiding Judge Davidson's accession to the bench, in the case of Quintana v. State, 29 Texas Crim. App., 401, he held: "The court's qualification of this bill of exceptions is thus stated: `When the charge was read to the jury, the defendant's attorney excepted to the charge without assigning any reasons.' We are not called upon to consider this exception. The primary object or purpose of a bill of exceptions reserved to the charge of the court is to call the attention of the trial judge to the particular matter complained of so that he may be afforded an opportunity to correct any error he may have fallen into, to the end that the rights of the defendant may not be prejudiced. A general exception does not accomplish this."
Both of these opinions were written prior to the amendment of article 723 of the Code of Criminal Procedure, but in both of them it was held a general exception was insufficient to bring any question before this court for review, but before return of the verdict by the jury, the error, if error there was, must be specifically pointed out to the trial judge. In this case this was not done, if we accept the statement and qualification of the trial judge. However, when the Legislature amended article 723 it wrote into the law of this State the provision that the judgment shall not be reversed unless the error appearing in the record (if error there be) shall be excepted to at the time of the trial or on the motion for a new trial. In the motion for a new trial in this case no error is pointed out in any paragraph of the charge of the court. The court in qualifying the bill of exceptions No. 26, on which appellant relies in his motion for rehearing, says that at the time of the trial a general exception to the charge as a whole was reserved, and that no reasons were given and no error attempted to be pointed out. Thus it is seen if we accept the qualification of the court, and under the authorities hereinbefore cited, if we follow the "criminal jurisprudence of this State as established" by the learned and able judges named by appellant, we must do so, then we can not consider the errors or supposed errors pointed out in a bill of exceptions filed two months after the adjournment of court, for the trial judge in his qualification says that this was the first time appellant had assigned such matters. In Flournoy v. State, 57 Tex.Crim. Rep., it is said by Judge Davidson: "There are some criticisms of the charge of the court in the brief which are not mentioned in the motion for new trial, nor were exceptionstaken to these matters on the trial. As these matters are presented they can *Page 579 not be considered." In Benevidas v. State, 57 Tex. Crim. 170, Judge Ramsey says: "There was no complaint of the court's charge made in the motion for a new trial, and under the terms of art. 723 of our Code of Criminal Procedure, and a long line ofdecisions in this State, we are not authorized to consider matters raised on appeal." Again in Keye v. State, 53 Tex. Crim. 320, the same learned judge holds: "In this court complaint is made that the court erred in not charging, under the facts of the case, on the issue of self-defense. An inspection of the court's charge discloses the fact that nowhere in it was the issue of self-defense submitted to the jury. It is the contention of counsel for appellant that the facts taken together raised the issue of self-defense. No request for a submission of the defense of self-defense was made in the court below, nor was complaint made in appellant's motion for a new trial of such failure to so charge in the trial court. Article 723 of the Code of Criminal Procedure is as follows: `Whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial, or on motion for a new trial.' Since the adoption of this article of the Revised Statutes in 1897, it has uniformly been held by this court that where no exceptions were reserved to the charge of the court, or the failure of the court to give requested charges, either by bills of exception reserved at the time, or in the motion for a new trial, appellant is not in a condition to complain. Bailey v. State, 45 S.W. Rep., 708. It has even been held that where there is material error of an affirmative character in the charge given, unless such error was excepted to at the time of the trial, or on motion for a new trial, such erroneous instructions are not ground for reversal. Pena v. State, 38 Tex.Crim. Rep.. To the same effect see Manning v. State, 46 Tex.Crim. Rep., 81 S.W. Rep., 957. So we think it clear that appellant is not entitled to a reversal of the case in view of the record, as here presented, even if it be conceded that the court should have charged on self-defense."
The opinion in the Bailey case herein referred to was written by Judge Henderson; in the Manning case by Judge Brooks, and in the Pena case by Judge Davidson, and in the original opinion we were but following the decisions of these able men. Other authorities might be cited by each of them, but as many are cited in the case of Ryan v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 878, it is here referred to without again copying the citations.
But if we were to ignore "the criminal jurisprudence of this State as established" by those able men, and consider the supposed errors pointed out for the first time two months after the motion for new trial had been overruled, and the adjournment of court, do the *Page 580 grounds alleged by appellant in bill No. 26 (herein copied) present reversible error? In the first ground in said bill it is alleged that because the indictment alleges the offense to have been committed on or about May 20, 1910, that if the act of intercourse took place prior to that time on which the seduction (under our decisions) must be based, he could not be convicted. This question is so fully discussed in paragraph eleven of the original opinion we do not deem it necessary to again do so. The authorities are there cited, and it presents no error.
The second is that the charge as a whole is argumentative, upon the weight of the evidence, and gave undue prominence to the State's theory, and assumed that appellant had carnal knowledge of the prosecutrix, and assumed that her testimony was corroborated. The charge as a whole is virtually copied in bill No. 26 herein quoted, and one who reads same can see that none of these grounds are well taken. The charge, among other things, says: "In this connection you are instructed that a woman can be seduced but once, and you can not convict the defendant for seduction in this case by reason of intercourse with her on May 20, if any he had, or by reason of any intercourse with her subsequent to their first act of copulation, if any there was, and any such subsequent acts of copulation, if any," etc., and then in two paragraphs of the charge, at the beginning and ending of the charge, the jury is instructed if they have a reasonable doubt of defendant's guilt they will acquit him.
Neither is the charge contradictory and confusing as alleged in said bill. The court in his charge had told the jury as above stated, that defendant could not be convicted for the act of intercourse on May 20, if any, nor any act of intercourse subsequent to the first act of copulation, if any, and then in paragraph eleven, complained of, had instructed the jury:"keeping in mind the foregoing general instructions, as to thelaw and evidence," etc., thus making it all a part of said paragraph. No intelligent juror could have been misled and the criticism is hypercritical.
The last ground in the bill is "that the court ignored defendant's right to have the jury instructed that the prosecutrix must have relied on the unconditional promise of marriage, and must have been chaste at the time, and that she did not submit because of lust or desire," etc. In this connection we may as well discuss the ground in the motion for rehearing wherein appellant claims that the court erred in failing to give the following special instruction: "You are further instructed, as a part of the law of this case, in connection with the main charge of the court, that if you believe from the evidence that the alleged prosecutrix, Annie Slaughter, did not rely solely and alone upon the absolute and unconditional promise of marriage by the defendant, if any such promise there was, but that she was moved to let the defendant have the alleged sexual intercourse with her through fear, or partly through fear and partly through *Page 581 lust, then it is your duty to acquit the defendant, and this though you should believe from the evidence that defendant promised to marry prosecutrix, which promise was a part, though not the sole and only reason of inducement, or if you have a reasonable doubt as to facts, you will return a verdict of not guilty."
Appellant does not state that there is any testimony that Miss Slaughter was unchaste, but says "a defensive issue can be raised by circumstantial evidence the same as any other and it is the duty of the court to instruct the jury upon all legitimate deductions, and the issue ought to have been affirmatively submitted."
Thus it is seen that in one paragraph of the motion appellant contends it was error for the court to permit Mrs. H.J. Matthews and others to testify that the alleged seduced female was a pure and chaste woman, but in this ground insists that the fact whether she was a pure and chaste woman was an issue in the case, and says the question was raised by circumstances in the case, and the defendant was entitled to an affirmative charge on this issue. If the evidence for the defendant raised the issue that she was not a pure and chaste woman, and "was moved to let defendant have the alleged sexual intercourse through fear, or partly through fear and partly through lust," then it may be conceded under our decisions defendant was entitled to have the issue affirmatively submitted. All the witnesses in the case testify that Miss Slaughter was a pure and chaste woman. No witness testifies otherwise, and now what are the circumstances that appellant says raises the question as an issue of fact to be decided by the jury? The only witness introduced by defendant was his mother, who testified:
"I remember the contents of the letter in a general way. She first wrote that she would write and tell him her condition, it was concerning her health; she was in bad health and she was uneasy about herself and she did not know what was the matter for certain; that the doctor told her that her spleen was enlarged, but she had missed five months; she said it had been five months since she had seen any signs and she was uneasy and Dr. Davis had told her he thought her spleen was enlarged and she was taking medicine from him, iron tonic to bring her right, that she was uneasy, seemed like she was larger than common, and she wrote that she did not know what to do about it and wanted Boy to tell her, she wanted John to advise her what to do as a friend, as she was afraid to tell her folks about it, and she wanted him to advise her, and she said he wasn't under any obligations to her; she just wanted his advice what to do and she was uneasy, and that was about the most there was in the letter."
She further testified that the letter had been burned up. All the letter, her writing to him about her condition, and asking what to do, would tend to corroborate the prosecutrix, other than the sentence, "she said he wasn't under obligations to her." What is meant by this the witness and no other witness seeks to explain. Miss *Page 582 Slaughter denies writing any such letter. This would not tend to show and would not raise the issue that she had yielded to him "through fear, or partly through fear and partly through lust." If it had any tendency, and she wrote the letter, it might suggest that she, by the use of those words, was not claiming that defendant was responsible for her condition — not in the slightest that any other had ever had intercourse with her, but that she was willing to blame herself alone, and bear alone her fall, although caused by him. It might go to the issue of fact as to whether he had had intercourse with her at all, and this issue was submitted twice by the court in instructing the jury that if they had a reasonable doubt of this, as well as any other fact, to acquit defendant. The only other fact or circumstance in the case that could be relied on as raising these matters, defendant introduced a portion of the testimony given by Miss Slaughter at the examining trial (just prior to the time that complaint is made of the testimony of Mrs. Goldsberry). It is as follows: "He had been going to see me about two years before we became engaged. I do not remember how he approached the subject of marrying. He never did come plain out and engage to marry me. At the time he first had intercourse with me, and at all of the other times that he had intercourse with me up until last May, there was nothing said about marrying. The first act of intercourse was in January, 1909."
If this was all her testimony, and no explanation given by her, this might give some support to the contention of appellant, but when he read her testimony as a whole, it shows that at the very time of intercourse she said "he did not come plain out and engage to marry me," but reading the testimony as a whole, the engagement took place long prior to that time. The letters, some fifty in number, written by appellant are couched in the most endearing terms, and corroborate the prosecutrix in saying that the engagement had taken place prior to this act of intercourse. In some letters he says: "I received a letter from Jack today, and he said he and Blanche had broken up at last, and you don't know how I feel about it. I wonder if such sad and heart-breaking experience will ever overtake you and I? It never will on my account, I know." "Oh, dear, it is getting harder for me to tell you good-bye even when calling or anywhere else. I could be happy with you forever. I am sure that I would never want to leave you for anything in the world. Sweetheart, if I could just see you now I expect I would love you almost to death." "No, Sweetheart, it can not be true that we are to be separated like this. I earnestly hope for a speedy day when you will be all mine."
And shortly after she says the first act of intercourse took place he writes: "I am so glad that you love me, Annie dear. I can not help but think how you looked Friday night when _____ I know you thought you were doing wrong, but you were not, for what I *Page 583 told you was all true." Any number of expressions similar to the above could be copied from the letters, and when we take the testimony of Miss Slaughter as a whole, the three answers to questions, claimed by appellant to raise the issue of lust, and that she did not rely solely on the promise of marriage, the testimony did not raise such issue in the case. By the method of cross-examination appellant sought to create in the minds of the jury a suspicion that such might be the case, but the answers and testimony of the witness do not make it a question in the case. She testifies that at the third act of intercourse she told appellant "that such proceedings must stop or we should get married. He said it didn't make any difference, we were going to get married anyhow, and he didn't see why I shouldn't want to grant his wishes, but he said, `I can quit coming to see you if you want me to.' I told him I didn't mind his coming, but such proceedings as that I wouldn't go through any more. Such proceedings gave me pain and very much humiliation." She says that in that conversation he asked her to let him see the engagement ring he had given her, and kept it and did not return it for some time. That when he did come back that upon the renewal of the promise of marriage, she again submitted to him, fearing that if she did not do so he would not carry out his promise to marry her. As we read this record there is nothing to suggest that she yielded through fear or lust, or that she relied on anything other than the unconditional promise to marry. There is no "conditional promise" testified to by any witness, and the only time the word "fear" is used is at the time of the fourth act of intercourse, when she says that having told him such proceedings caused her pain and humiliation, and must stop, he quit coming to see her for a while, and when he again came she yielded to him for fear he would not redeem his promise of marriage. What pure and chaste woman, having yielded her virtue under such conditions, when request was again made, but would fear that if she did not yield she would fear that he might not save her honor by carrying out the promise? Appellant, as before stated, does not claim that the testimony raises such issues, but the circumstances are such that "legitimate deductions" would raise the issue. We do not think that the evidence would justify any deduction other than that the prosecutrix was a pure and chaste woman at the time appellant first had sexual intercourse with her; nor would the circumstances justify a deduction that she yielded "through fear or partly through fear and partly through lust." The authorities cited by appellant correctly present the law when the evidence raises the issue, but when the question is not raised by the evidence, the court did not err in refusing to give the special charge, and the charge of the court presented the law applicable to the issue as fully as the testimony warranted. If it could be said that there is some slight evidence, the rule as laid down by Chief Justice Roberts in Bishop v. State, 43 Tex. 402, has always been adhered *Page 584 to, even by the eminent judges of this court named by appellant above. He says: "When the evidence tends sufficiently to the establishment of a defense or mitigation of the offense charged as to reasonably require a charge as applicable, is a question of sound judgment, to be exercised by the district judge, in the first instance, and afterwards by this court on appeal. If its force is deemed very weak, trivial, light, and its application remote, the court is not required to give a charge thereon." This is approved by Judge Hurt in the case of Elam v. State, 16 Texas Crim. App., 42, he saying: "This evidence it may be conceded tends to raise the presumption that this was his condition when the sale was made, but the question arises with what force does it thus tend? Has it that pertinency and force which would render it reasonable to infer that the jury would have been influenced by it in arriving at their verdict, if the law applicable thereto had been given in charge? We are of the opinion that it has not. On the other hand, we believe that notwithstanding there is evidence tending to present this defense, still its pertinency and force are so remote and weak that a failure to charge the law applicable to this defense worked no injury to the rights of defendant."
In Odle v. State, 13 Texas Crim. App., 612, Judge Hurt, speaking for the court, lays down the rule that the better practice is that where the evidence tending to establish a certain theory is so meagre that the court, if it had the power, would not hesitate to set aside the verdict based thereon, the court in his charge should ignore the theory so presented.
These decisions of these two able and renowned lawyers have always been followed by this court, and we quote them for the reason that while we are of the opinion that the evidence does not raise any such issue as contended by appellant, yet if it does slightly do so, it is so slight it was not error for the court to fail to charge thereon.
The claim that there was error in the court's definition of seduction is not well taken. We are cited to the cases of Gorzell v. State, 43 Tex.Crim. Rep.; Sledge v. State, 63 S.W. Rep., 317. By reading these two cases it will be seen there was no definition of seduction given, while in this case in two paragraphs of the charge the court gives a very full definition of the offense, and one which was approved in Carter v. State,59 Tex. Crim. 273, 127 S.W. Rep., 215; see also Faulkner v. State, 53 Tex.Crim. Rep.; Putman v. State, 29 Texas Crim. App., 454, and Branchs' Crim. Law, sec. 738. Defendant selects only one paragraph of the charge and criticises it, when if the whole charge is read, it is seen that the meaning of the word as applicable to a case of this character is fully and completely stated. However, in this case, as in the other, in no bill of exceptions and in no ground of the motion for new trial, is it attempted to point out any error in the charge in this *Page 585 particular, and, therefore, we would not be authorized under the law to review it.
While we have heretofore given reasons and cited decisions of this court why we would not be authorized to consider any error not pointed out in the charge on accomplice testimony, it not having been pointed out or assigned either by bill of exceptions or in the motion for new trial filed in the court below, yet if one will read the charge in full, it will be seen that there is a substantial compliance with article 769 of the Code of Criminal Procedure, relating to seduction, and when we read the charge of the court as a whole, copied herein, and the special charge given at the request of appellant, quoted in the original opinion, it will be seen that no error is apparent of which appellant can complain. Without copying herein the decisions of this court on that point, we refer to sections 964, 965 and 968 of White's Ann. Code of Criminal Procedure.
Owing to the insistance of able counsel for appellant, and out of respect to the extensive brief filed herein, we have again discussed nearly every proposition involved in the case. The authorities cited in his brief present correct abstract proposition of the law in the main, but the premises upon which he bases his conclusions and argument have no substantial basis in the evidence, and his premise being wrong, of course, the conclusions reached by him in various instances are without merit.
As to the "slight discord now existing in the court," referred to by defendant in his brief, we want to assure counsel and all other members of the profession that all cases are examined and decided upon their merits, regardless of who may represent a defendant, and the same careful consideration is given to each case. No differences, if differences there be, shall or will affect the decision in any case, and each and every one who brings his case to this court on appeal may feel assured that "we will not make fish of one and fowl of another," but the law, as we understand it, will be applied to all alike. The rule of decision as established by the well known and able judges whom he names will be followed and adhered to, except in those cases where the Legislature, within its discretion and wisdom, has seen and may see fit to change the law, but when they do change it, we will follow the rule of law as made by the law-making power.
The motion for rehearing is overruled.
Overruled.