It is the settled law in this state that to make out the offense of seduction the injured female must have surrendered her virtue solely on the promise of marriage; if she submits to the carnal embrace partly because of such promise and partly from some other inducing cause it is not seduction. Barnes v. State, 37 Tex.Crim. Rep., 39 S.W. 684; Nolan v. State, 48 Tex.Crim. Rep.; Simmons v. State, 54 Tex. Crim. 619,114 S.W. 841; Mulhause v. State, *Page 611 56 Tex.Crim. Rep., 119 S.W. 866; Collins v. State (Texas Crim. App.), 26 S.W.2d 242. It is appellant's contention that the issue last suggested was raised by the evidence and that no instruction covering it was given the jury. In the main charge the court gave no defensive instruction at all. Written exceptions were presented complaining in substance that nowhere in the charge was the jury instructed that appellant should be acquitted if prosecutrix consented to carnal intercourse "through any other inducement than a promise of marriage." Appellant further contends that special charge number five which was given and which is set out in our original opinion, does not cover the issue raised. By reference to the charge it will be seen that upon the subject under discussion it only told the jury if prosecutrix "yielded her person to his (appellant's) carnal embrace simply from her own will and sexual desires, and not because of any promise of marriage" he should be acquitted. The charge does not undertake to inform the jury what would be the legal result if she yielded her person partly through the promise of marriage and partly through some other inducing cause, such as that called to the court's attention in special charge number fifteen. A portion of special charge number fifteen is as follows:
"* * * or if you believe she was moved to submit to carnal intercourse through her own passion, or a desire to get defendant to continue his visits to her, and not alone on an unconditional promise to marry, in good faith relied upon by Rachel Jeter, or if you have a reasonable doubt as to whether she was moved to consent through motives other than a promise to marry, you must acquit."
Appellant relies upon the testimony of prosecutrix as raising the issue covered by said requested charge. Her testimony is as follows: "* * * Before I yielded to him he asked me to have intercourse with him and says anyway what difference did it make; he insinuated that I was cruel and didn't love him, and everything. Yes, he had asked me to do that before; the first time he asked me to have intercourse with him was about six or seven months before that and I refused; he also asked me between that date and the date I finally yielded to him to have intercourse with him and I refused each time; when I refused he got mad and left a time or two — left; he left two or three times. I yielded to him when I did on the promise to marry, I would not have yielded under any other conditions whatever; I believed his promise to marry at that time. If I had not believed him and trusted him to marry me I would not have yielded my virtue to him."
It is appellant's contention that the issue sought to be submitted in special charge number fifteen was pertinently raised by the evidence quoted and that the refusal of said special charge was error.
We are of opinion the evidence quoted when fairly construed does not raise the issue contended for by appellant. It is positive to the point *Page 612 that prosecutrix had on more than one occasion refused appellant's importunities, and yielded only when she did upon the promise of marriage. The relation by her of appellant's conduct when disappointed in his desires cannot fairly be construed as raising the issue presented in the requested charge.
The motion for rehearing is overruled.
Overruled.