At the time of the rendition of this opinion I entered my dissent to the affirmance. I have reviewed the case again in the light of the motion for rehearing and the action of the court overruling it.
With reference to accomplice testimony the court gave the following charge: "You are instructed that the witness Ella Clay is an accomplice. Now you can not convict the defendant upon her testimony alone, unless you first believe that her testimony is true and shows that the defendant is guilty of the offense charged; and then you can not convict the defendant upon said testimony, unless you further believe that there is other testimony in the case corroborative of the testimony of said Ella Clay, and tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense charged and of the act of intercourse." It will be noted that this charge is in the general form and does not apply the law to the case, except it requires corroboration of the act of intercourse. It omits to charge the jury that her corroboration must be by independent testimony and must show or tend to show a promise of marriage. The charge would have been better for the defendant if the last clause had been omitted, towit: "and of the act of intercourse." There was no question of the intercourse between the parties. The issue between the defendant and the State was as to the promise of marriage. Appellant admitted the intercourse, but placed it on the ground that it was not induced by any promise of marriage. Exception was reserved to this charge on the ground that it omits and fails to charge the jury affirmatively that the prosecutrix's testimony should be corroborated as to the promise of marriage, and requested the court to give special charges Nos. 1 and 2 referred to and made a part of the exception to the charge; and also objects to the court's charge on corroboration of the evidence of Ella Clay and says the same is too general and does not apply the law to the facts. It is the universal rule that an accomplice can not corroborate himself. The corroboration must come from sources independent of the accomplice. To meet this appellant requested as part of the law of the case, that the jury be informed "that unless you believe from the evidence beyond a reasonable doubt that *Page 168 the prosecuting witness, Ella Clay, is corroborated outside of her own testimony as to the alleged promise of marriage it will be your duty to acquit the defendant in this case and say by your verdict not guilty." Another charge was asked, which was refused, "that it is not sufficient that the prosecuting witness, Ella Clay, be corroborated alone as to the act of sexual intercourse, but you are charged that the alleged promise of marriage is an essential part of this offense and unless the said Ella Clay has been corroborated with other evidence than her own as to said alleged promise of marriage, if any, then in that event you will acquit the defendant." These charges were refused. The judge signing the refusal says these charges were given in the general charge and for that reason refused. I do not find this charge given by the court. In fact, I quoted above the general charge given by the court. Under all the authorities it is necessary That the prosecutrix be corroborated at least as to two facts, first, promise of marriage, and, second, the illicit intercourse. It takes at least these two things to constitute seduction. This is so by the statute, and by all the authorities that have been called to my attention. It would seem unnecessary at this late date to collate them. There are a number of cases which hold that this charge should be given. There has been a tendency by recent decisions to hold that it was not necessary to so charge, but none of these cases that I have observed holds otherwise than it is necessary to corroborate the accomplice on these propositions. Some of them intimate that it may not be necessary to charge specifically a corroboration as to promise of marriage and intercourse. The court did, however, in this case, select out the act of intercourse and charge specifically upon that, but did not inform the jury that the prosecutrix must be corroborated as to the promise of marriage. This would intensify the reason why the charge should have informed the jury that she must be corroborated as to the promise of marriage. It has always been held that it is error not to give the charge when requested. Barnard v. State, 76 S.W. Rep., 475; Keaton v. State, 83 S.W. Rep., 911. It is unnecessary to go further with this matter. Appellant availed himself of all the technical rules with reference to exception, and not only excepted to the court's charge at the proper time and requested special instructions, but embodied in his exceptions the refusal to give the special instructions. This error was conceded by the Assistant Attorney General, and appellant not only reserved his exceptions in this way but embodied them in bills of exception. So there was no question of the fact these matters are presented for review.
There was some testimony admitted which I think was erroneous, but I do not purpose to enter into a discussion of that matter. I am, therefore, of opinion this judgment ought to have been reversed, and the jury instructed as to the law of the case upon another trial. The defendant certainly is entitled to have the law administered as found in the definition of the offense, and especially when he did everything within his power to see that the law was presented in the charges.
I therefore respectfully enter my dissent. *Page 169