(dissenting). The state’s theory is that the alleged seduced girl, Eula Scroggins, met defendant for the first time in December, 1912, and became engaged to him the following month, January, 1913. It seems from the evidence that appellant did not visit the girl at her home except incidentally, and then by going with her from and to social functions and prayer meetings and in company -with other people. There were no letters, notes, or love-making and things of that character occurring between them, and no courtship or love-making shown as is usually done in such cases. She testified that during the latter part of April iu going from her father’s residence to that of appellant’s family she met defendant on a branch, or between the two places, which were about a quarter or half mile apart, and had intercourse with him; that at that time he said something about an engagement of marriage. “When the intercourse ended she went t.o appellant’s home and obtained from his mother some coffee for which her mother had sent. She did not see appellant anymore for several days, and then saw him passing her father’s residence. He did not speak to her, nor she to him. Shortly afterward there was a singing function at the home of an uncle of prosecutrix, whose name was Shofner. Prosecutrix, her mother, sister, appellant’s sister, her brother, and a number of people attended the singing, all going from the residence of the prosecutrix. Appellant did not accompany these people, but returned from the singing with prosecutrix in company with the other designated parties. Mi. Ivy and another party on horseback overtook this cro.wd as they were going to the singing function. Ivy dismounted and walked with prosecutrix to that place. When the singing ended the same crowd returned to the- home of prosecutrix, and appellant walked with her home. She says she and appellant fell a short distance behind the crowd and engaged in sexual intercourse. The two acts mentioned were all that occurred between them. Appellant denies both the promise of marriage and acts of sexual intercourse at any time or place. He testifies further he never called on her at her home spe-*217eially, and the few times he was there was .with a crowd of young people who gathered at her father’s residence for social purposes as they did at other places in the neighborhood, and all the association .with and attention to her on his part were incidental ‘and in the manner stated. As to the attentions to the girl, as above stated, there seems to he but little contradiction, if any, in the record. The girl became pregnant and gave birth to a child. Th^re was no information given by her to any of her family as to this intercourse until the physician informed her mother that her daughter was pregnant, something like three months advanced. The mother testifies she did not believe it and declined to believe it until the girl admitted the fact. Shortly after this statement to the mother appellant was arrested, and an examining trial followed. On that trial prose-cutrix testified fully. Her testimony was reduced to writing, and after making corrections she signed it, and it is a part of the record in this case. On that trial her testimony excluded seduction. She not only testified that she did not give consent, but submitted to him on account of threats on his part and fear of him. Her evidence, in fact, shows compulsion, excluding consent. Later she was before the grand jury and testified as she did on the examining trial. It is unnecessary to repeat that testimony. It was practically identical with the testimony before the examining court. She was then discharged by the grand jury. Her father then came voluntarily before the grand jury without being summoned and immediately after her departure. The district attorney informed him what the girl had testified and her failure to make out a case of seduction; that she had denied mutuality and consent and testified to facts that excluded seduction and showed compulsion and threats to force her to comply with his desires, and through fear she did comply. It is not my purpose here to state the details of the language used, but only the substance. The district attorney also informed her father that in order to constitute a case of seduction, in addition to consent and mutuality on the part of the girl, prosecutrix must be corroborated as to the marital contract or agreement. The father testified before the grand jury that he nor his family ever heard of any marital contract between appellant and prosecutrix. He took his departure from the grand jury room. After being gone about 25 minutes or such matter, the prosecutrix voluntarily returned before the grand jury, changed her whole testimony, and stated that she did agree to the act of intercourse because of the promise of marriage. This marriage was to be consummated in the fall, but, if anything got wrong with her, he would marry her at once. She says this conversation occurred at the time of the first act of intercourse which occurred on the branch. The next day her sister, who seemed to have been some miles away and at home, came before the grand jury and testified that appellant had stated to her that he and prosecutrix were going to get married in the fall, and if necessary, or if anything happened to the girl, they might get married earlier. This may be for the present a sufficient statement of the case.
Several bills of exception I will consider together as they present substantially the same matter, and recite that two of the grand jurors, one of them being the foreman, Mr. Ivy, were tendered by the defendant to prove matters heretofore mentioned which were rejected by the court on objection of the state. After the matters above detailed occurred before the grand jury, and after the conversations between the district attorney and the father of the two girls in the grand jury room, the father disappeared from the grand jury room and was seen with prose-cutrix on the street or at a store. In a few minutes thereafter — 25 or 30 — she left her father and went voluntarily before the grand jury again, and at this appearance before the grand jury she changed her entire testimony to what she testified on the final trial. The defendant offered to make proof of these facts, which the court excluded. By another grand juryman it was offered to prove the same facts. It was after these matters occurred that the girl changed her testimony from compulsion to consent, and the sister came the following day and testified before the grand jury that appellant had stated to her that he and prosecutrix intended to marry in the fall, and if anything happened to the girl in the meantime they would marry at once. The mother had never heard of the marital contract, nor had the father, and the girl, who testified to it, never communicated her knowledge of it to anybody so far as this record is concerned until she went before the grand jury. I am clearly of the opinion that the conversation between the district attorney and the father of the prose-cutrix in the grand jury room, in connection with subsequent acts and sending the girl back before the grand jury, should have been admitted. Relations of the parties and what occurred before the grand jury, the fact of the father being informed that the state had no case as a basis of prosecution for seduction, his going to the girl and her immediate return before the grand jury, and radically changing her testimony from what she had previously stated before the grand jury and before the examining court prior to the meeting of the grand jury, so placed this matter that what occurred between the district attorney and the father became material to explain her conduct as well as to show the connection of the father with this radical change. The subsequent action of the daughter in her conduct and her voluntary return before the grand jury, the change of her testimony so as to make a new case in its entirety from compulsion to mutuality, rendered what occurred between the father and *218the district attorney in the grand jury room oí such moment that his acts and conduct after leaving that body should have gone to the jury as well as what occurred in the grand jury room above mentioned. This question was discussed in Odell v. State, 184 S. W. 208, recently decided. In that case the presiding judge of this court dissented. I do not care to discuss that case; I simply refer to it. It is but fair, and it seems to me the only reasonable deduction, to say that the girl could not have known a change in her testimony was necessary except by information from the father after his return subsequent to the conversation he had with the district attorney, fabrication or manufacturing of testimony is always admissible. It is evident to my mind that what occurred between the father and the girl after he left the grand jury room with the information therein received was the cause of her returning voluntarily before the grand jury and radically changing her testimony. I cannot agree,to the proposition that this testimony was hearsay, nor can I agree that it was immaterial, as is announced by the majority opinion. There was a powerful reason generated suddenly for this radical change in the girl’s testimony, as well as the newly discovered corroborative evidence from the sister as to the marital contract. If perjury had been assigned on her last evidence before the grand jury and on a trial of that case, would there be any serious doubt that the testimony would have been admissible as bearing on the guilt of the girl? I think certainly not. It would have borne on more than one phase of the charge of perjury based on her last testimony. Again, had the father been charged with inducing his daughter to swear falsely — subornation of perjury or as an accomplice — would it be questioned that the testimony would have been admissible? 'Surely not. It would have been material and strongly probative to show and sustain the charge of subornation of perjury or that he was an accomplice in advising the changing by the daughter of her evidence. Such matters .can be shown by circumstantial evidence as well as by direct and positive testimony. It could be used to show motive, animus, or falsity of given testimony, to affect the credit of the witness, and furnish a reason for the sudden flashlight that awakens the memory from former forgetfulness. Her change of testimony had a basis and reason somewhere and was produced or induced by some cause. What occurred in the grand jury room between the father and the district attorney seefhs to be the keystone in the arch of the reconstructed edifice of this case. Prom the occurrences in that room a new theory was evolved, and the girl was sent again before the grand jury to change her testimony to sustain it. If these facts were not material, it would be somewhat difficult to show materiality. There was perjury somewhere, either before the father’s advent in the grand jury room or after his return from it. If her last testimony whs false, the defendant had the right to show it, and, further, that her father induced that perjury or was instrumental in it. In such, event the materiality of this testimony could not be questioned, and most assuredly not if the father was on trial for subornation of perjury. Nor would it be less cogent against the girl to show falsity ; for, in view of this record, she had sworn falsely one time or the other. She says she did it the first time because she did not want her family to know she had consented. The sudden change in her testimony in 25 or 30 minutes is hardly explainable on that ground.
There is another question raised by bill of exceptions in regard to the evidence of the witness Mathis. This raises a question that has been often discussed in the jurisprudence of this state, and the evidence should have been admitted. The question briefly is: It was sought to be proved by Mathis tliat the prosecutrix was associating with his wife at the time these matters were going on impugning her chastity, and that his wife was a lewd woman, on account of which he ceased to live with her; that pros-ecutrix in this case was a sister of Mathis’ wife. There is some testimony also that might be mentioned in this connection to the effect that another party or some other party may have been the father of this illegitimate child. I do not care to go into that phase of the case, however, here. That lewd association and matters of that sort can be proved is settled in Texas, and I cite Caviness v. State, 42 Tex. Cr. R. 420, 60 S. W. 555; Mrous v. State, 31 Tex. Cr. R. 597, 21 S. W. 764, 37 Am. St. Rep. 834; Jeter v. State, 52 Tex. Cr. R. 212, 106 S. W. 371; Kelly v. State, 33 Tex. Cr. R. 32, 24 S. W. 295. The Jeter Case, supra, seems to be very much like the present case in many of its features in regard to the testimony.
Another question is suggested. Exception was reserved to the court’s charge as well as his refusal to give requested instructions. The court charged, among other things, with reference to the definition of seduction and as to seduction as follows:
“(2) That at the time and up to the time of such carnal knowledge, if any, the said Eula Scroggins was a virtuous and chaste woman; that is, that she had never before had sexual intercourse with a man.”
The court nowhere corrected this, as I understand the charge, and appellant asked instructions which tended to present the definition of seduction in its proper legal light. I wish to say here the law is that a woman may be unchaste, not virtuous, and yet not indulge in sexual intercourse. This is the recognized rule in Texas. It was so held in Putman v. State, 29 Tex. App. 457, 16 S. W. 97, 25 Am. St. Rep. 738, and in a long line of subsequent cases. Testimony to the effect that the alleged seduced female’s repu*219tation for virtue and chastity is bad has always been held admissible as tending to show her want of chastity, and also to show that she was not the subject of seduction. Applying the law to a case, the court should not limit seduction to the fact of intercourse as the criterion of unchastity. This is not the law. Of course, the crime of seduction cannot be had without the act of sexual intercourse, because the statute so provides, but the act of intercourse is not the criterion of virtue; at least it is not the statutory criterion. A prostitute may have sexual intercourse with a man, but that would not be the test of seducing her. The bawd cannot be led away from the path of virtue. She does not travel that pathway. As I have heretofore understood, the law of seduction consists in leading from the path of rectitude and chastity the alleged seduced female followed by debauching her body. Correct decisions have kept this in view, and eases have been reversed where charges were refused presenting that very question for the guidance of the jury. Seduction is the leading away by blandishments, arts, and wiles of the seducer, thus getting the woman’s mental condition where the seducer can accomplish his design upon debauching her body and securing sexual intercourse. The mind and body must both be debauched in order to constitute seduction. Fornication is not seduction, nor is adultery. The Legislature has so enacted, and this court will hardly claim the power to create another statute with a different definition. The court’s charge was entirely too restrictive and not the law, and the jury may have concluded, and doubtless did conclude, from that paragraph of the charge that, if the defendant had intercourse with the girl, she was therefore seduced.
There is another question which the writer thinks is reversible. The girl testified the first act of intercourse occurred on a branch between the residence of appellant and that of prosecutrix, that they met there accidentally, and that she was not expecting to meet him. 'He denies seeing her or having any conversation or sexual intercourse with her. She states this was the first act of intercourse. The other act occurred some days later. She testifies to but two acts. Appellant excepted to the court’s charge and requested instructions submitting this question, that is, that the jury should be limited in their finding to the first act, if they should find him guilty, and that, if she was seduced at all, it was on that occasion. While the testimony of the subsequent act was admissible under the decisions, yet the second act was not and could not be seduction. If the second act had never occurred, and the first did, if seduction at all, it would constitute seduction, and this without reference to the second act. A girl cannot be seduced twice by the same man by different acts and different times. If she was seduced by appellant and her body debauched, it was done at the time' of the meeting on the branch. I am of opinion that appellant is correct. The state should be limited to that act by the charge of the court. I think this needs no discussion.
There is another serious question which the writer thinks is well taken. The evidence is not sufficient to sustain a conviction for seduction. Twice prosecutrix testified under oath — once in writing and taken down at an examining trial, and once before the grand jury. On both occasions she denied that she ever consented for appellant to have intercourse with her, that he did so by means of compulsion and threats producing fear in her, and that under such conditions she submitted. The facts do not show evfen after all the changes in her evidence a case of seduction; for she swears she was afraid to permit his embraces, and so told him. She told him she was afraid of being “caught” and it would be found out on her, but that on his agreement to marry if pregnancy ensued she permitted him to have intercourse with her. If this is true, it is not seduction. If it is not true, and the compulsion theory is correct, then admittedly the case could not be one of seduction. The girl testified that after they had agreed to be married he seldom went with her, and then only in company with others; that he had never mentioned to her until he met her on the branch that evening anything with reference to having intercourse with her, never alluded to it, and on that occasion he so terrorized her that she permitted him to have sexual intercourse, and she never mentioned this until her pregnancy was discovered, and this when the doctor revealed the fact to her mother that she was pregnant. She accounts for this now by stating that she did not want her family to know that she had consented. She put it on the ground of compulsion and threats, but she did not change this testimony until after her father had been before the grand jury and had been informed by the district attorney of the want of essential testimony to show seduction. It was not till then her whole testimony radically changed, and her sister was brought in to corroborate her on the promise of marriage. This is too much of a Hyde and Jekyll case, it occurs to the writer, to authorize the incarceration of the defendant in the penitentiary on an infamous.conviction. Not only so, but she never mentioned to appellant the fact that she was pregnant. Some great judge in Texas in its early jurisprudence said — it may have been a quotation, but he said — the jury should “look with holy horror upon amended swearing.” This was more than amended swearing. It was a radical substitution of facts totally at variance with the girl’s previous testimony and a change from threats, *220compulsion, and force producing fear in lier to submissive compliance with his wishes to gratify him and her amorous desire. The Writer is not willing to sustain convictions on testimony of witnesses who can in so few short moments change so radically their whole testimony as is shown by this record. This girl knew the real facts as well before the examining trial as she did after the district attorney informed the father that her evidence precluded seduction if they were facts. The girl testified positively and directly to intercourse by compulsion; had gone over and corrected her testimony in the examining court, and signed and swore to it. She had gone before the grand jury and swore to the same statement that she did before the examining court. After the retirement of her father from the grand jury room a change came- over the spirit of her dream, and she went back voluntarily in a ■few moments, and one of the grand jurors said she was crying, hut she changed her whole testimony as squarely and as radically as it is possible to be changed, contradicting everything she had previously testified. Eorce, threats, and compulsion had become mutuality and consent.
1 am not willing to lend the judicial pow er invested in me to affirm a case under such a record. I therefore respectfully dissent.