On November the 9th of last year an opinion in this case was rendered by Presiding Judge Davidson of this court, in which Judge McCord concurred, reversing and remanding the case on the ground, in substance, that the verdict of the jury and judgment of the court were unsupported by the evidence in that there was not in the evidence sufficient proof of corroboration. From that opinion, as the record shows, Judge Ramsey dissented, filing at *Page 276 the time a lengthy dissenting opinion. Soon thereafter a motion for rehearing was filed on behalf of the State, which was submitted on oral argument by Hon. John A. Mobley, then Assistant Attorney-General. On the 14th day of December thereafter Judge McCord prepared an elaborate opinion on the motion for rehearing, concurred in by Judge Ramsey, in which the State's motion was granted, the judgment reversed and set aside, and the cause affirmed. This opinion was not on that day handed down out of deference and respect to Judge Davidson, who had written the original opinion, and who was, as we were advised, detained at home on account of sickness. Judge Davidson not agreeing to the conclusion reached by Judge McCord, the matter remained in this condition until after the resignation of Judge Ramsey from the bench, and the case comes to us for decision. This much we have thought proper to state in view of the condition of the record as it will appear in the reports. Judge McCord's opinion is as follows:
"At a former day of this term of court the judgment in this case was reversed and remanded. The opinion was written by Presiding Judge Davidson, in which I concurred. Judge Ramsey dissenting.
The State has filed a motion for rehearing on the ground that the majority opinion was in error in holding the evidence insufficient to support the conviction. The majority opinion held that the prosecutrix was not sufficiently corroborated and that in order to convict a party of the crime of seduction it is necessary that the prosecutrix be corroborated both as to the promise of marriage and intercourse. The writer of this opinion has reached the conclusion that the majority opinion was wrong, and having changed his mind with regard to this matter, in justice to himself feels it is due that he should give the reasons for such change.
The crime of seduction is a statutory offense. It did not exist at common law. The master, guardian or parent might bring a civil action for damages for loss of service by reason of his ward, servant or child being debauched. The Legislature in 1858 passed an Act making it a penal offense, in this State, for any man under the promise of marriage to seduce and debauch any female under the age of twenty-five years. It was also provided that the woman seduced should not be permitted to testify. After the Legislature passed an Act permitting defendants in all criminal cases to testify, the Twenty-second Legislature lifted the ban off the seduced female and declared that she should be a competent witness, but that her testimony would have to be corroborated by other testimony tending to connect the defendant with the offense charged. Before the passage of this Act we had but few prosecutions for this offense, due largely to the fact that the seduced female could not testify. The statutes defining seduction in the different jurisdictions differ somewhat. Some of them merely make it a crime to seduce and debauch an unmarried female of good repute or of previous chaste character, *Page 277 saying nothing of the means employed. Others make it a crime for any man under promise of marriage to seduce and have carnal intercourse with such a female. In other jurisdictions the offense consists in the act of persuading or inducing an unmarried woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasions, or wiles which are calculated to have and do have that effect and resulting in her ultimately submitting her person to the sexual embraces of the person accused. See 35 Cyc., p. 1320. In some jurisdictions the female seduced is not required to be corroborated. This corroboration in some States, like ours, requires that the evidence of the prosecutrix shall be corroborated by other evidence tending to connect defendant with the offense charged. In other States she is required to be corroborated as to the promise of marriage, and where corroboration is required, the rule seems to be as follows: "The statute does not require the testimony of another witness, or direct and positive evidence, but the corroborating evidence may be supplied as well by facts and circumstances surrounding the transaction and otherwise established in the case. Nor need the corroboration be of such force as would prove the facts independently of the female's testimony. Where there is some testimony of other witnesses or other evidence supporting testimony on material questions in the case, it is for the jury to determine whether she is sufficiently corroborated." See 35 Cyc., p. 1363. The evidence in a seduction case to support a conviction is to be measured and governed by the rules of any other crime, and any rule that would require a departure from the ordinary rules of testing the sufficiency of the evidence or the amount of proof required, unless prescribed by the statute, would be out of harmony with the spirit of the criminal law. Now, the law provides in seduction, like any other crime, that any fact may be established by circumstantial evidence as well as direct. It simply lays down this rule with regard to this crime which would be applicable to any other case where the law made a witness an accomplice, that is, that no conviction can be had upon the testimony of the person whom the law denominates an accomplice, unless there is other evidence tending to corroborate the witness as to the offense committed. The statute does not say in what this testimony shall consist. It uses language that practically is used in all cases where the State relies upon the testimony of an accomplice. No different rule is authorized. Therefore, when we go back to see what the courts have said with regard to testimony that tended to connect the defendant with the commission of the offense it simply means such facts and circumstances as will tend to show the defendant committed the offense and that the accomplice testimony is true. It does not require that the accomplice shall be corroborated in every material particular. It does not require the court to single out this element of the offense or that element and then direct the jury that unless the accomplice *Page 278 is corroborated on this issue or that issue that they will acquit. Every crime consists of different elements. Murder in the first degree consists of express malice and the killing. Now, if an accomplice should be placed upon the stand who testified both to the express malice and killing, has this or any other court ever directed that the jury will not convict upon the testimony of the accomplice unless he had been corroborated both as to his testimony of express malice and of the killing? Or of burglary, has this court or any other court ever directed that before a conviction should be had upon the testimony of an accomplice as to the burglary that he must be corroborated, both as to the breaking and as to the intent? We say no. The statute does not say that the prosecutrix shall be corroborated as to the promise of marriage and intercourse, but says that she shall be corroborated by other evidence "tending" to show the commission of the offense. Mr. Webster's definition of "tend" or "tending" is "to stretch, extend, direct one's course; to be directed as to any end, object or purpose; to aim; to have or give a leaning." Therefore, we would gather from this article that if the circumstances lead toward or tend toward the defendant as the party who committed the offense and shows the truth of the prosecutrix, this would be all the law required. The writer of this opinion in the case of Williams v. State, 59 Tex. Crim. 347, 128 S.W. Rep., 1121, uses this language: "It is insisted before this court that because there was no evidence corroborating her upon this point the conviction can not stand. We do not agree to this contention; all crimes have in them different issues and different elements that are required to be proved in order to sustain a conviction. The statute is general that the accomplice must be corroborated by other testimony, tending to connect the defendant with the commission of the offense. The statute does not say what this testimony shall consist of. If the testimony other than that of the accomplice should make out a complete offense, it would not be necessary to use the accomplice's testimony. Hence, the law wisely provides that the corroboration must tend to connect the defendant with the commission of the offense and to require that every constituent element of the offense, as sworn to by the accomplice, must be corroborated would be requiring of the State an impossibility." In the case of Myers v. State, 7 Texas Crim. App., 640, this language is used:
"The authorities are not agreed as to amount and extent of corroboration required in order to warrant conviction on the testimony of an accomplice who, in the sense of the witness, is any direct participant in the crime, but with this we need have no concern, for the simple reason the statute has settled it by declaring the extent of the corroboration necessary. It is `other evidence tending to connect the defendant with the offense committed.' We do not understand that this requires that the different matters testified to by the accomplice are to be supported, each one, by other testimony to *Page 279 the same isolated facts, but that it must tend to connect the defendant with the offense committed." As said in 1 Am. Eng. Enc. of Law, p. 583, the testimony of the accomplice need not be corroborated on every material fact. So that, independent of his testimony, a conviction would be authorized, as this would in effect deny to the testimony of an accomplice all value. In the case of Criner v. State, 53 Tex.Crim. Rep., we find the following: "We have set out the testimony at this considerable length and have stated practically the testimony tending to connect appellant with the burglary. The rule is, of course, well settled, that before a conviction can be had upon the testimony of an accomplice that there must be other proof tending to connect the person charged with the commission of the offense. Just how strong in every case this corroborating testimony shall be must depend to a large extent upon the facts of each particular case. We believe that while not strong, that it could not in fairness be said that there was no corroborating testimony, or that it was so weak, indefinite or immaterial as to justify us in holding, in view of the verdict of the jury, that it was wholly lacking." In the case of Jackson v. State, 40 S.W. Rep., 998, in a case of incest this court says:
"We have examined the statement of facts carefully in order to ascertain if the testimony of the accomplice, Mattie Jackson, was corroborated by other evidence tending to connect the defendant with the commission of the offense. The evidence in this regard shows that appellant alone had access to prosecutrix and opportunity to have had carnal intercourse with her. The record abundantly shows that he had such opportunities. The testimony shows, by two witnesses, that she was enceinte; and her grandmother testified that she was so far gone in pregnancy that she took her away from school. Mattie Jackson testified that she was pregnant, seven months gone, and that she had never had intercourse with any other person except the appellant, who was her brother. We think the testimony tends to connect appellant with the commission of the offense." See the same rule in the case of Bales v. State, 44 S.W. Rep., 517; Faulkner v. State,53 Tex. Crim. 258, 109 S.W. Rep., 199, and in fact we believe that the rule laid down in the Myers case, supra, has, with regard to every other crime, other than seduction been followed and that this court has never in any crime other than seduction intimated as to what issues the prosecutrix had to be corroborated. There are some expressions in the opinions of our court on the subject of seduction that have led the profession into the belief that this court requires the State to prove and the trial court to charge the jury that before a party can be convicted of seduction the testimony of the prosecutrix will have to be corroborated both as to the promise of marriage and intercourse, and which have led toward the laying down of the rule that the corroboration as to these issues would have to be of the same character of proof and of the *Page 280 same strength and cogency as the accomplice's testimony, both as to the promise of marriage and the intercourse, and by reason of these expressions considerable confusion has arisen and trial courts have been somewhat confused as to how to charge the jury in a case of seduction. We are at a loss to know why a different rule should obtain in seduction cases, from that regarding any other crimes.
Let us notice some of the decisions of this court where a rule has been attempted to be laid down as to the measure of corroboration of the accomplice's testimony. The first case that our attention has been called to where this court intimated that the prosecutrix had to be corroborated, both as to the promise of marriage and intercourse, will be found in the case of Gorzell v. State, 43 Tex.Crim. Rep., in which this language is used: "What has heretofore been said leads up to another proposition relied on by appellant, to wit, that the evidence does not sustain the verdict of the jury. In this connection, we believe appellant is correct. Prosecutrix, as stated before, testified as to the promise of marriage. The only evidence that can be said to support her on this point is one witness, to the effect that appellant said on one occasion that he was going to marry her, and it was further shown he was in the habit of associating with, writing to, and calling her `Sweetheart.' If it be conceded that an agreement to marry existed between them, still it is not shown, outside of prosecutrix's own testimony, that appellant had carnal intercourse with her at any time. . . . The fact that appellant had carnal intercourse with prosecutrix is a vital issue in this case, and to obtain a conviction she must be corroborated upon this point." Now, what do we gather from this opinion? First, that the witness must be corroborated. How? By other testimony that defendant had had carnal intercourse with prosecutrix. In the Spenrath case, 48 S.W. Rep., 192, this court held that the evidence was insufficient to sustain the conviction because there was no corroborating evidence as to the promise of marriage, and reversed that case. In Woolley's case,50 Tex. Crim. 214, 96 S.W. Rep., 27, this court held the evidence insufficient because there was no testimony corroborating the prosecutrix as to the marital contract and as to the act of intercourse. This court says in that case: "It is necessary in a case of this character that the prosecutrix, who is an accomplice, be corroborated as to the marital contract and the intercourse with the alleged seducer." We have searched the books without avail to find where any such rule had ever been laid down by any court in any criminal case. In Howe's case, 51 Tex. Crim. 174, while this case was affirmed by Judge Brooks, Judge Davidson dissented, and in his dissent used this language: "This court has uniformly and invariably held wherever the question has arisen that she must be corroborated, first, as to the act of intercourse on the part of the accused, and, second, as to his promise to marry her, as a predicate for the intercourse," and calls attention to the case of *Page 281
Spenrath, supra, in support of this proposition. We have not found any case behind the Spenrath case, supra, that had ever attempted to lay down a rule as to the quantum, amount, or value of corroboration. The only rule that has even been established is that the corroborating evidence must be such as tends to connect the defendant with the offense charged; but here the court not only goes to the extent of saying in what she shall be corroborated, but rather leads to the conclusion that the corroborating evidence on these two issues must be of the same character of testimony as that of prosecutrix. If on the two vital issues she must be corroborated to the same extent as her own testimony would establish, then why use her at all? The rule to our mind is wrong. The decisions of this court, we think, wherever it has held that the proof of the accomplice must corroborate the prosecutrix as to the promise of marriage and intercourse, and that the court should so direct the jury in the trial of the case, should not be followed. In the case of Wright v. State, 31 Tex.Crim. Rep., is laid down, we think, the correct rule. Corroborative evidence need not be direct and positive or such evidence as is sufficient to convict independent of that of the prosecutrix, but simply such facts or circumstances as tend to support her testimony and which satisfy the jury she is worthy of credit. Or stated in another way, if the supporting testimony tends to show that the defendant committed the offense and shall satisfy the jury that she is worthy of credit and is telling the truth, then the law is satisfied and this was practically so held in the Beeson case, decided at this term and not yet reported. In the case of People v. Gumaer, 80 Hun, 78, the following is in substance held: "That on a trial for seduction under a promise of marriage evidence of defendant's attention to prosecutrix in the character of a suitor is sufficient corroboration of the testimony of prosecutrix." In the case of Armstrong v. People, 70 N.Y. 38, that court held that the evidence of the accomplice was corroborated when the State showed by proof of circumstances which usually attend an engagement to marry, such as exclusive attention to the female by defendant and the seeking and keeping her society in preference to that of other women. In Iowa, under a statute similar to ours, in the case of State v. Crawford, 34 Iowa, p. 40, it was held that corroborative testimony need not be of a character that goes directly to the commission of the offense, but such as will tend to strengthen and corroborate the testimony of the injured person and to point out the defendant as having committed the offense. In State v. Reinheimer, 109 Iowa 624, it was held that the fact that the parties kept company, and acted as lovers usually do and other like circumstances, are sufficient corroboration of the evidence of prosecutrix required by statute. In State v. Smith,84 Iowa 522, it was held that direct corroborative evidence of the seductive arts or promises to obtain intercourse is not required, nor need the corroboration necessarily be as to all the *Page 282 elements of the offense, and where the testimony of prosecutrix shows the offense, and to connect defendant therewith, she is corroborated by witnesses showing intimacy and courtship between the parties as well as actual intercourse, the case is for the jury and it is error to direct a verdict for defendant.
We deduce from the law that the prosecutrix is corroborated whenever there are any facts or circumstances that tend to show that the defendant committed the offense, and that whenever the court attempts to enlarge upon this rule by laying down a rule as to what particular issues of the case shall be corroborated, it is in error. Now, in this case the prosecutrix testified to the intercourse and the promise of marriage; the defendant was the only man who was shown affirmatively to have kept her company within the period of nine months prior to the birth of the child, with one exception, and he was with her at a time that would render it impossible for him to be the father of the child; she lived close to defendant's brothers and mother; she was an orphan girl; defendant had been waiting on her for two years; he went with her to church, to prayer-meeting, to social gatherings, public picnics, and she was the associate and companion of his sister; she lived part of the time with his family; she bore a splendid reputation; she was regarded as of a chaste and pure character; the testimony does not disclose a suspicion against her, and she was a fit associate of those that were the dearest to him, and but one young man had ever been seen in company with her other than the defendant, and he went with her home on one occasion. Defendant had almost, we might say, the exclusive opportunity to commit this offense. After it become noised abroad that the young lady was enceinte, he jokingly remarked that he ought to buy a mitt for his boy; when it became known in the country, he fled, went away and was gone a year. The officers searched for him and could not find him; the testimony excludes the idea that anyone else was the author of her ruin; the testimony shows that the defendant not only believed her to be pure, but he knew it. For did he not know it, he would not have put her under the roof with his family, nor allowed his sister to associate with her. Even when she went on a visit once, six miles off, defendant's own sister went in a buggy after her. We think these circumstances tend most strongly to corroborate the prosecutrix that the defendant was not only the author of her ruin, and that he was not only engaged to her, but that he had intercourse with her under the promise of marriage. The very fact that he was her exclusive company for two years is a circumstance corroborating her upon the question of marriage. The very circumstances exclude the idea of anyone else having the opportunity; and his close companionship and association with her, shows that he was the author of her ruin. The evidence to our minds abundantly shows the guilt of the defendant, and the evidence tending to corroborate the prosecutrix is all that the law *Page 283 requires. Nor is the court called upon to direct the jury in what she shall be corroborated, or the amount and value of the corroboration. The defendant is guilty. The law has been satisfied.
Let the motion for rehearing be granted, the judgment of reversal be set aside, and the case affirmed.
McCord, Judge."
We have carefully read all the opinions prepared in the case, including an elaborate opinion recently prepared by Judge Davidson, in which he maintains with great force and ability the views originally entertained by him. In view of the differences between the members of the court as originally composed, we have ourselves invited argument on the State's motion, and have, in the light of such argument and the opinions theretofore prepared, and after a careful inspection of the record come to the conclusion that Judge McCord's opinion correctly states the facts, is a correct statement of the law, and should be as it is hereby in all things approved and affirmed.
There is no complaint of the trial court's charge. That he properly submitted the question of the corroboration of the witness Katie Weddell is admitted. Under our system the jury is the judge of the credibility of the witnesses and the weight to be given their testimony. The jury found that the witness was corroborated, and we are not disposed to disturb their finding on a question of fact.
It is therefore ordered that the motion of the State be and the same is hereby granted, the judgment of this court heretofore reversing and remanding the cause is set aside, and the judgment of conviction is hereby affirmed.
Affirmed.
ON REHEARING. January 25, 1911.