When the judgment was affirmed I noted my dissent. On account of the length of the opinion on the original hearing and the opinion on motion for rehearing, I shall not undertake to follow the matters fully, but rather generalize them, selecting some of the matters that I *Page 586 deem essentially reversible, and what I think ought to be noticed in view of the fact they are decided contrary to the settled jurisprudence in this State.
1. Over appellant's objection Mrs. Matt Goldsberry was permitted to testify to a statement made by her at the residence of the Rev. George L. Crockett, in the presence of appellant, the prosecutrix, Annie Slaughter, and Rev. Crockett. The witness had gone to the residence of Rev. Mr. Crockett in company with the prosecutrix for the purpose of having a conversation with prosecutrix and appellant. During the visit she stated that "she did not think they had any talk coming, that all they needed was a marriage license and a preacher." Various objections were urged to the introduction of this testimony, which in my judgment should have been sustained. There was no criminality involved in this language. There was no reference to the fact that prosecutrix had been seduced, or that appellant was charged with seduction. This statement was but the expression of the opinion of the witness, which opinion did not indicate the crime of seduction had been committed, or even that there had been criminal intimacy between appellant and prosecutrix. Appellant made no reply. "It is well settled that it is error to admit in evidence a defendant's silence touching declarations made in his presence unless such statements in effect amount to an accusation against him, and are of a character calling on him to make reply." This language was used by Judge Ramsey on motion for rehearing in Crowell v. State, 56 Tex.Crim. Rep.. The Crowell case had been affirmed, and on rehearing the court reviewed one question in the case. The opinion on motion for rehearing will show the statement made in the presence of Crowell by Tucker was, in substance, that a horrible murder had been committed. Objection was urged to the introduction of that testimony. Judge Ramsey said: "It was believed, however, that the charge of the court in respect to this matter rendered the admission of this testimony immaterial, and probably not hurtful. While the case was ably argued on original submission, there was no brief filed further than memorandum of the authorities upon which counsel relied, and in the consideration of the case we seemed to have overlooked the fact that there was nothing in the instructions of the court in respect to the silence of appellant in the face of these declarations of Tucker." Then followed the language first quoted in the Crowell opinion. The following authorities were cited by Judge Ramsey in that opinion, which fully and amply sustain the conclusion reached: 2d Whart. on Ev., sec. 1138; 1 Greenl. on Ev., secs. 108, 199, 200, 233; Loggins v. State, 8 Texas Crim. App., 434; Felder v. State, 23 Texas Crim. App., 477; Ex parte Kennedy, 42 Tex.Crim. Rep.; Skelton v. State, 51 S.W. Rep., 944; Sauls v. State, 30 Texas Crim. App., 496; Long v. State, 13 Texas Crim. App., 211; Hanna v. State,46 Tex. Crim. 5; Conner v. State, 17 Texas Crim. App., 1; Ex parte Wilson, *Page 587 47 S.W. Rep., 996; Baker v. State, 45 Tex.Crim. Rep.; Com. v. Harvey, 1 Gray, 487; see also Welch v. State, 46 Tex. Crim. 528; O'Quinn v. State, 55 Tex.Crim. Rep.; Denton v. State, 46 Tex.Crim. Rep..
In Welch's case, supra, Judge Brooks, rendering the opinion for the court, used the following language: "If an accused says nothing and remains silent when such question is asked him, his silence can be used as a criminating fact against him; but when he makes no reply to statements having an ambiguous or double meaning, such statements can not be introduced when he is subsequently on trial. In other words, the statement must show some criminality."
We notice in this case Mrs. Goldsberry did not state there had been criminal intimacy between appellant and prosecutrix, nor did she state they had been engaged, but merely her opinion that they should get married. This she could have believed and stated without entertaining the slightest idea that appellant was guilty of any wrong towards prosecutrix, or that he ever had intercourse with her, or that he ever seduced her, or that his conduct had been otherwise than that of an honorable lover. It was not a question propounded to him; it was not the statement of any fact, but merely the expression of her conclusion.
The case of Humphrey v. State, 47 Tex.Crim. Rep., is cited by my Brother Harper in support of his position in regard to this question. As I read that opinion it is an authority directly against him. The bill of exceptions in that case was reserved to the introduction of testimony of the witness Underwood, who stated that he asked if Mack Humphrey was guilty. "She replied `yes.' When defendant heard this answer he made no reply, and there the matter ended. While the same witness was testifying, he was permitted to state that when he went to the house of appellant his wife was crying. This was shortly after the transaction. This bill is explained as follows: `Jim Underwood had testified that defendant and his wife, together with the assaulted party and other people, were in the room when he got there, and defendant was sitting in the door with his head bowed, and his wife was crying.' Objection was urged that no act or statement of the wife of defendant could be used in evidence against appellant. As this bill is presented, we believe the exception is well taken. The fact that the wife was crying was an indication on her part, if it meant anything, that it was her opinion that appellant was guilty. This called for no response from appellant. It was the act of his wife indicating her feelings in regard to the matter, and was a circumstance which conveyed to the jury the idea that she believed in her husband's guilt. This is a different proposition from that which might be predicated upon a statement of the wife to the husband in the presence of third parties of a criminating nature, for that would call for a reply from him, and it would not have been the wife being forced to testify, but it would *Page 588 be another witness testifying to acts or conversations occurring between the parties. The act of crying called for no response or reply from the defendant and none was made." The introduction of that evidence was held reversible error. It is in point on the question here involved. The remaining portion of the opinion was in regard to an accusation made by prosecutrix against Humphrey in his presence, that he had ravished her. This was held admissible as being an accusation made by the ravished woman in that case charging appellant with the crime, which he failed to deny, but he bowed his head. That was held admissible. That phase of that case has no relevancy or bearing upon the question here involved. Mrs. Goldsberry had not charged appellant with ravishing prosecutrix or seducing her. The other cases cited in the opinion on rehearing could be followed up and their want of relevancy definitely pointed out, but it would make this opinion too long. The trouble about the cases cited in the motion for rehearing is, while they announce correct propositions of law in the cases wherein they were decided, they are not in point as far as this case is concerned. The cases cited by my brethren seem to have no bearing on this question, and they have been taken from their proper place and made to do service on a question upon which they have no bearing. Either the cases that I have cited in support of appellant's contention ought to be followed, or they ought to be overruled directly.
2. I can not agree with my Brother Harper wherein he holds the testimony of the two witnesses Alvis and Thomson was admissible. By the witness Alvis the State was permitted to prove that he heard a conversation between appellant and Eugene Jeanes on December 3, prior to defendant's arrest on December 4 or 5, in the grocery store of Mr. Phillips, where witness was at work, in which conversation Jeanes stated he had been having intercourse with some "coons." The defendant replied that "he was not monkeying with any coons, that he was going into the best parlors of the town where he was getting better stuff than that." Numerous objections were urged to this. The bill further recites that it was shown by the evidence that defendant at that time had not been with prosecutrix since the 2d week in July, 1910, his conversation having occurred on the 3d of December, 1910, and, therefore, the reference made by appellant about the "parlors" and "stuff" he was getting could not have individuated the prosecutrix. There was an interval of nearly five months since the parties had associated together, and this conversation referred to the "stuff" that appellant was then getting and "parlors" he was then visiting. The name of the prosecutrix was not mentioned in the conversation, and no reference made to her. The bill with reference to Thomson's testimony recites that the State was permitted to prove by Thomson that about twelve months ago and about the first of the year of 1910, defendant stated to him that he would be surprised if he knew from whom he was obtaining intercourse *Page 589 in the town of San Augustine. Several objections were urged to this. The bill further recites that the defendant had not been with prosecutrix since April 1, 1909, and was not with her after the 20th of April, 1910, and this testimony shows that he could not have referred at the time to the prosecutrix or intended to individuate her in any manner as the party to whom he referred. So it will be seen with reference to the testimony of the witness Thomson that this conversation occurred about the 1st of January, 1910. Appellant had not been going with Miss Slaughter, prosecutrix, since the 1st of April, 1909, and there was no mention of her name in connection with this matter, and, therefore, this could not be held to individuate or point her out as the party to whom he was referring, or to any one of any number of parties to whom he may have been referring. Prosecutrix had testified on the stand that she had never had intercourse with appellant except from February to April, 1909; that they then separated and were not together any more until from May 20, 1910, to July, 1910. These statements were clearly inadmissible. In order that this evidence could have any bearing in this case it must in some way connect itself with prosecutrix or show by the facts that appellant had her in mind at the time he had the conversation with the two witnesses. Judge Ramsey, in Fuller v. State, 54 Tex.Crim. Rep., said:
"Now, upon whom is the burden to show that the threat was directed toward the person slain, or embraced such person? Obviously, upon the State, for no presumptions can be indulged against the appellant. Before the testimony can be admitted, it must appear that the threat was directed toward the person slain." To the same effect see Godwin v. State, 38 Tex. Crim. 466; Holley v. State, 39 Tex.Crim. Rep.; Garrett v. State, 52 Tex.Crim. Rep..
In the Garrett case, supra, it was said: "Without going into a detailed statement of it and the grounds of objection, we are of opinion that this character of threat was not admissible. This has been decided so frequently that we deem it unnecessary to cite authorities. Before a threat supposed to have been made by the accused can be used against him in his trial, the evidence must show that the threat was directed against and individuated the deceased. The fact that `Guinea' meant negro women is not sufficient." In that case Garrett was charged with killing a negro woman, and it was shown that he had said that he intended to kill a Guinea, and by some of the testimony it was shown the word Guinea meant in that particular neighborhood a negro woman. The admission of this testimony was upon appeal held too general and failed to individuate the deceased, although she was a negro woman. Most of the cases cited are homicide cases, or at least cases in which threats were used where personal difficulties occurred. However, the writer does not see any difference in the principle. Wherever a reference is made by the accused to an injured party, whether it be homicide or any *Page 590 other character of case, that reference must individuate or connect itself with the alleged injured party. It is none the less so in a seduction than it would be in a homicide case. My brethren seem to draw some distinction or attempt to do so between the two characters of cases. The Hinman case, reported in 59 Tex.Crim. Rep., was a case of seduction. A bill of exceptions was reserved to the court permitting the witness Davenport to testify in regard to statements made by appellant, substantially, that he, appellant, was the cause of Miss Barefield being in a pregnant condition, and also statement to Davenport to the effect, in substance, that he contemplated stealing the girl and invoked his assistance. That testimony was held admissible. That testimony directly individuated Miss Barefield. It was a statement by appellant of the fact that he had been having intercourse with Miss Barefield, and by reason of that intercourse she was in a pregnant condition. That testimony was clearly admissible. That case is not in point. If appellant had stated to either Alvis or Thomson that prosecutrix in this case was pregnant on account of his illicit intercourse with her, there would have been no reason for objecting to the testimony, and the Hinman case would be in point.
3. I wish also to enter dissent to that portion of the opinion of the majority in which they hold admissible evidence of several witnesses to the effect that prosecutrix' reputation for chastity was good. This testimony was introduced as original evidence in the case. If appellant had attacked the reputation of prosecutrix at the time of her seduction, then the State would have been justified in offering evidence to show her good reputation. But this had not been done by appellant. In 35 Cyc., 1314, under head of "Seduction," it is said: "In an action by the female for her seduction, the presumption of law is in favor of her virtue. Evidence of her good character has been held inadmissible unless her character is attacked by defendant, and there seems to be no distinction between character and conduct as applied to a female in an action for seduction." There are quite a number of authorities cited in the footnotes to which I refer, but deem unnecessary to collate. Again, on page 1316, same volume of Cyc., it is said, it is not competent to prove the general character of a defendant unless there is attempt to impeach it. This seems to be the well settled rule in Texas. Conway v. State,33 Tex. Crim. 327; Green v. State, 49 Tex.Crim. Rep.; Ezell v. State, 65 S.W. Rep., 370.
Judge Harper, in his opinion on motion for rehearing, in support of the correctness of the former opinion and the rulings of the trial court on this proposition, cites the case of Jeter v. State, 52 Tex.Crim. Rep., as authority to sustain his position. An inspection of that case will, I believe, justify the statement that it was correctly written upon the propositions involved, but that it has absolutely no bearing upon the question involved in this case. In that case *Page 591 the defendant was attacking the character and reputation of the prosecutrix, and the question came as to whether or not the evidence introduced for that purpose was legitimate. This court held in the opinion that it was. I do not care to review that case, for the question involved has no application here. The difference between that case and the one in hand is so plainly marked that an inspection of the two cases makes the proposition self-evident. In this case the State introduced evidence to show good reputation and character of prosecutrix before any attack made upon it. In the Jeter case the defendant was attacking the character and standing for virtue of the woman he is alleged to have ravished. The same may be said of the Caviness case,42 Tex. Crim. 420. And the same point was decided practically in the two cases, Jeter and Caviness. I have always heretofore thought that there was a marked distinction and a wide difference in regard to the introduction of evidence to sustain as original testimony the character of prosecutrix and where the defendant was attacking it. The law presumes the chastity of the female sex. Therefore, to tear it down or to impugn it, there must be an attack made upon it. In fact, it is a fundamental principle of our law that innocence is always to be presumed. It sometimes becomes rather a difficult question where the innocence of the accused may come in conflict with the presumed character of the woman for chastity. The law presumes the woman to be chaste, and it justifies in seduction cases an attack upon it, for if she is unchaste, then there can be no seduction, but until it is attacked in some way, the presumption is that she is chaste. My brethren, as a general proposition, may be right, that the rules in regard to the admission of testimony are the same, whether it is offered for the State or defendant, but that is owing altogether how the question comes. The defendant is never called upon to prove his innocence. The State must prove his guilt. The rules of evidence in that respect would seem to be somewhat different.
Closing this part of my dissent, I wish to say it has always been the rule that neither party to a cause, civil or criminal, can support its witnesses by proof of general reputation or proof of similar statements made by them, or proof of character or reputation of any kind, unless it has been attacked. And I do not believe an exception can be found in the authorities in this State to that statement. Even the Nash case does not go far enough to make the rule laid down in that case an exception. My brethren make a quotation from the same volume of Cyc., from which the quotation that I made above was taken. But I do not believe that any other authority except the opinion in this case can be found laying down the proposition that a more rigid rule will be adopted in the admission of testimony for the protection of property than for the protection of the life or liberty of the citizenship.
4. My brethren devote considerable portion of the opinion on *Page 592 rehearing to stating in full and commenting upon a bill of exceptions reserved to the entire charge, and the reasons stated for such exceptions, and because there is no ground of objection stated to that portion of the charge with reference to accomplice testimony, they hold there was no exception taken. I do not so understand the record. There are other bills of exception in the record to the charge. Bill No. 19 sets out a special charge requested by appellant, which was refused by the court, submitting an appropriate charge on accomplice testimony and covering defects in the charge of the court. The court refused this and signs the bill which contains the grounds of objection as follows: that said charge was a correct enunciation of the law as applicable to the facts, and for the reason that the issue was not presented in the main charge of the court. There is another bill of exceptions No. 20 on the same question, presenting it still more fully and from a different standpoint. This was refused and exception taken. It occurs to me that the objections to the court's charge, that it was insufficient on the law of accomplice, and two requested instructions asked and refused, with the grounds stated, are sufficient to present the question for discussion and revision. It is not debatable that if the court had considered the matter with reference to the charge on accomplice testimony, the errors are fatal to the conviction. I do not know that it is necessary to cite authorities. The matter has been decided so often in Texas that it would seem like a useless consumption of time to cite the cases, or write further on it. There is not a decision that has been called to my attention since Bell v. State, 36 Tex.Crim. Rep., to date, that does not sustain appellant's contention.
5. There is another question that is fully presented by special charges and bill of exceptions. The charges were refused by the court. The law sought to be applied grows out of and is directly pertinent to the testimony of prosecutrix. The issue was raised that prosecutrix willingly consented to the intercourse independent of any promise of marriage. For instance, her testimony with reference to the first act of intercourse is that she and appellant were at her home sitting together, and she sat on his lap and thus consummated the first act of intercourse. There is other testimony along the same line. I deem it unnecessary to go further into the evidence. The court did not charge that if she submitted herself on a conditional promise or through lust or fear or any of those kinds of emotions or feelings, appellant would not be guilty. The question was squarely raised by the evidence. No charge was given by the court. Special requested instructions were asked. They were refused and bills of exception reserved. Under all the authorities in this State the charge was necessary, and failure to give the special charge requested is fatal to conviction. I will cite some of the cases: Cole v. State, 40 Tex. 147; Gorzell v. State, 43 Tex.Crim. Rep.; Carter v. State,59 Tex. Crim. 273, 127 S.W. Rep., 215; Sledge v. State, 63 *Page 593 S.W. Rep., 317; Barnes v. State, 37 Tex.Crim. Rep.; Nolen v. State, 48 Tex.Crim. Rep.; Simmons v. State,54 Tex. Crim. 619; Muhlause v. State, 56 Tex.Crim. Rep.; Spenrath v. State, 48 S.W. Rep., 192; Hinman v. State,59 Tex. Crim. 29.
6. The court gave two charges as follows: "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."
"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, then you will find defendant guilty."
Exceptions were reserved to this on the ground that it was argumentative, and upon the weight of the evidence, and conflicting and contradictory, and calculated to mislead and confuse the jury. These exceptions were well taken under all the authorities in this State. The last case decided by this court was rendered at the present term on January 21 of this year, in which similar conflicting charges were held error, and the judgment reversed. See Chris Humphrey v. State. See also Blair v. State, 26 Texas Crim. App., 387; Murnutt v. State, 67 S.W. Rep., 508; 12 Cyc., subdivision V, 649; Barrett v. State,55 Tex. Crim. 182. The Humphrey case decided at the present term was also a seduction case, and the charges in that case and this case are almost identical. In the Humphrey case, supra, the judgment was reversed because of these conflicting charges. The opinion in this case is in conflict with the Humphrey case, and that case not noticed.
Believing most firmly that this case has been tried without due regard to the law of the case, I most respectfully enter my dissent. *Page 594