Upon the urgent insistence of counsel for the State, we have again carefully reviewed this case and the questions upon which it was reversed in the original opinion. We have reached the conclusion that we were in error in the original opinion.
It is unnecessary to recite all of the testimony. That of the alleged seduced girl makes out a clear and strong case against appellant. She is positively corroborated and amply so by several witnesses and many circumstances as to every material fact necessary. The promise of marriage was not only positively testified to by the prosecuting witness but also by her sister and father and an intimate friend of appellant himself. Appellant shows by his own testimony that he frequently saw and knew the girl by sight some two or three months before he was introduced to her in April, 1911, and that from that time on until June 25th, following, when he accomplished her ruin, he assiduously devoted himself to her, calling upon her several times a week and frequently taking her out to different functions, swearing: "I gradually worked up to the proposition of having intercourse with that girl. . . . I was trying all the time, every time I went out there." After he succeeded in accomplishing her ruin, he and she both swear that *Page 174 from two to three times, and many times oftener, each week thereafter for a long time, he continued to have sexual intercourse with her, she swearing that all this occurring under his repeated promises to marry her at a later date, which was fixed by agreement between them. This continuous relationship existed between them until September, 1912, when he left the State for Hot Springs, Ark., where he went for treatment for the cigarette habit. He remained away many months on this occasion, the girl claiming that he promised all the time to fulfill his promise to marry her as soon as he got physically and financially able to do so. When he returned to Houston he resumed his former sexual relationship with the girl, and soon thereafter got her in "a family way." She informed him of it and continuously pressed him to carry out his promise and marry her, so she testified. He as persistently refused but kept up his relationship with her until she was about five months "gone"; and when she persisted that if he would not marry her a prosecution might ensue, he thereupon suddenly again left the State, and soon learned while out of the State that the officers were after him, and he skipped about over the country evading arrest for about eighteen months. We think this record with practical and all reasonable certainty shows that he not only deliberately set about to accomplish the ruin of this girl, and did do so, under his promise of marriage to her, but that he persistently also set about to prostitute not only her body but her mind and language also. He succeeded in debauching her body within about three months after he set about to do so, but it took him more than a year and a half by his vile and baneful tutorage to prostitute her mind and words, for it was some sixteen months after he seduced and debauched her before he succeeded in having her to write to him a letter wherein any indecent or vulgar or profane word was used, and it was some time thereafter before he succeeded in having her to write other worse letters to him, and more than two years till he succeeded in having her write for him the vile and indecent poetry she did. It seems he took particular pains to preserve all these writings by her to him, for on this trial he produced them, had her identify them as having been written by her, and he offered them in evidence. Evidently it took him more than two years under his vile and baneful tutorage to induce this girl to write such documents to him. The latter ones especially are correctly characterized by Judge Davidson in the original opinion.
The testimony further shows, and the jury by the effect of their verdict expressly found, that prior to the time this girl came into the clutches of appellant, she was a chaste and virtuous girl, not only in body, but in words and mind also, and that prior to his ruin of her she had never before had an act of intercourse with anyone. The proof also fails to show that prior to appellant's contact with her and training of her, as stated, she ever used any vile, vulgar, indecent or profane language.
The testimony shows that the alleged seduced girl, Ella Braun, for *Page 175 some time before, and a long time after, appellant's connection with her began, was a working girl, thrown on her own resources; that she worked in a laundry in Houston. After she had given her testimony as a witness for the State, on her cross-examination appellant's bill of exceptions No. 2 shows that he asked her: "Q. `Did you know Verna Gecosky at the laundry?' A. `Yes, sir.' Q. `Isn't it a fact that she became pregnant and made some man marry her?'" The State objected to this as immaterial. Neither the bill nor record otherwise shows, or attempts to show, that Ella Braun associated with said Gecosky girl otherwise than that they worked at the same laundry. They did not live together. They did not otherwise associate together, and no intimation is made that even while they worked in the same laundry Ella Braun knew anything about the associates or conduct of the Gecosky girl. In approving the bill the court qualified it by stating that the defendant did not at any time during the trial prove, or offer to prove, the general reputation of the prosecutrix for chastity was bad, nor was there any evidence in the entire record showing that before she was seduced by defendant she was other than a pure girl. This bill, and the entire record, in no way comes within the principles laid down in Caviness v. State, 42 Tex. Crim. 420, and Jeter v. State, 52 Tex.Crim. Rep., nor any other case decided by this court. We were, therefore, in error in the original opinion in holding that the court erred in excluding the answer of the witness shown by said bill. The trial court was correct in excluding it.
It is true that it has frequently been held by this court that the course of conduct of an alleged seduced girl soon after the claimed seduction and before then, with others, and the language she uses or writes to others about the same time, are admissible, but it has never been held that such matters are admissible when they occur a long time after the alleged seduction and are not shown to have any connection with the acts of such girl before the alleged seduction or at some reasonable time soon thereafter. Appellant has a large number of bills to the action of the court in excluding said letters and poetry documents from the jury on the objection of the State. The bills are quite lengthy and are qualified by a long statement of the judge to each one. It is unnecessary to quote or state the whole of such explanation. We will merely quote this much of it:
"The testimony shows that the prosecutrix was seduced on the 25th day of June, A.D. 1911, and the writing set out in this bill of exceptions was written not to a third person but to her alleged seducer. The defendant did not offer any testimony from any source as to the general reputation of the prosecutrix for chastity. No witness who testified claimed to have either had or to have witnessed any act of intercourse of prosecutrix with any person other than the defendant. The only attack on her chastity made by defendant consisted in asking her if it was not a fact that she had had intercourse with one Chick Webb, but upon her denial no attempt or offer was made to prove that such *Page 176 was the fact or that there was any foundation for such a question. The court did not believe that the writing served any legitimate purpose and it was no defense and did not tend to support any defense, and had said writing been connected in any way with any testimony that might raise the issue of her chastity at the time the defendant seduced her, the court would have admitted it; but the writing being disconnected and so longsubsequent to the date of the seduction, the court was of the opinion that it had no probative force as tending to show that she was unchaste at the time of her seduction." (Italics ours.)
We were in error in the original opinion in holding that these documents were admissible in evidence. Under the circumstances of this case we think the action of the trial judge in excluding them was correct. We know of no case that would go to the extent of holding such documents admissible under the circumstances as shown by the record herein.
We, therefore, grant a rehearing in this case, set aside the former reversal of the judgment, and now affirm it.
Affirmed.