I have been unable to agree with my brethren in the affirmance of this case, and in stating my reasons shall not discuss the majority opinion but treat the case from my understanding of the record.
The alleged seduced woman was Miss Rebecca Stripling. Her testimony shows the engagement between herself and appellant occurred in June or July, 1909, and he continued to wait on her"for three or four months." She says, "When we become engaged to be married some time in June or July, 1909, the time for the marriage was for some time during Christmas. That was the following Christmas from then. We didn't get married at that time. . . . Mr. Grimes, the defendant, did have sexual intercourse with me. I don't remember exactly the first time that he ever had intercourse with me. I suppose it was *Page 332 about six weeks before the time we were to be married in Christmas. . . . He had intercourse with me the same year that we had become engaged; it was not the year following the engagement that we had the intercourse the first time. He promised that wewould marry and that he would shield me from having anybody toknow it. . . . After this act of intercourse took place, something finally become wrong with me as a result of it. I informed the defendant that I was in that condition. I then requested him to make good his promise of marriage to me. When I did that he made some other promise, I don't hardly know what it was; he promised me he would see me through. . . . I can not remember just the last time I saw him before he left, but I think it was some time the last of January, or some time in February, I don't remember. That was in 1910. Q. 1910 or 1911? A. 1910. .. . I gave birth to a child. I gave birth to the child in 1910.It was in 1910. It was on the 7th day of May, 1910. It wasn't Mayof this year, but 1910. That child wasn't born this year. . . . I have testified here that I gave birth to a child and that is right. I have also testified that it was Mr. Grimes' child. I have also testified that I gave birth to that child in Houston. I don't know where that child is now. The last time that I ever heard of that child it was still in Houston. I haven't done anything to find out about it since. I never did see the child. I don't know how long it was after Dennis Grimes had carnal knowledge with me before that child was born, I suppose about one year, or something like that. I know the first time that Dennis Grimes ever had sexual intercourse with me. As to the day of the week that he first had intercourse with me, it was on Sunday. It was in the daytime. I don't remember just when that was. I don't remember just exactly when it was. I had never had sexual intercourse with anybody before. But I can't give the day or the month that I first had sexual intercourse with a man. I can't give the day nor the month. As to the year, I think it was some time in 1909, as well as I remember. It was in the winter. I amsure it was in the winter. The first time I ever had intercoursewas with Dennis Grimes, and it was in the winter of 1909. I wouldn't attempt to tell the jury what month it was in. When we first had intercourse we were somewhere on the road out in the country somewhere, I don't remember just where now I don't remember just where it was. . . . I didn't yield to him because I had any desire whatever for sexual relation. I suppose this relation existed between the defendant and me after the first time for about six weeks or two months, something like that. After the first time he had sexual intercourse with me, I think he continued to have such relation with me for about two months, something like that. From the beginning of the time that he had sexual intercourse with me up to the last time he had such relation with me, I am sure was within a space of two months. I don't think it would be any more than two months. I have said that the first act of intercourse took place in 1909. I haven't said it was in December, 1909, and it wasn't in December. I said it was in the winter time. The first act of intercourse I ever *Page 333 had with the defendant was in the winter time, some time in the winter time. . . . At the very first time that the defendant, Dennis Grimes, had sexual intercourse with me, as to whether or not he made an entrance, I suppose he did. I say I suppose he did, because I don't know whether he did or not. I don't know whether he made an entrance or not. I didn't become enceinte the first time he had intercourse with me. I know that I didn't become pregnant the first time he had sexual intercourse with me. As to whether or not there was anything said between Dennis Grimes and me the first time he had intercourse, about a rubber shield, I remember he said something about it; something about a rubber shield to protect me, but I don't know what it was he said, though. I said something about it, too. I surely said something about it. As to whether or not he used such a thing, I know he said he used it, and that is all I know about it. I didn't see it. I didn't have my hands on it. He did not continue to use those rubber shields all of the time. He used them part of the time but he didn't use them all of the time. I have not made any inquiry at all about my child since it was born."
She swears positively as to the engagement in June or July, 1909, and that some time in the following winter of 1909 — not in December — he had the first act of intercourse with her and about six weeks before Christmas, 1909, and this continued for six weeks or two months, and that her child was born on the 7th day of May, 1910. Her testimony was not shaken upon this idea. She further testified that she went to Houston in company with Dr. Shadden of San Augustine, she and her family living in Nacogdoches County. Accompanying her and Dr. Shadden was her relative, Sam Stripling. Dr. Shadden was not the family physician, and lived in a different county. He testified that he went with the girl and her relative to Houston. That he did not know whether she was pregnant or not, except what she stated. That he made no examination of her, but he went with her to a maternity home in Houston and returned to San Augustine. It was at this maternity home or rescue home that she says the child was born. That she had never heard of it since, and has made no inquiry about it. There was some question also raised as to the age of the prosecutrix. She testified she was born on the 3rd of December, 1885. Her mother, and perhaps her father, first testified she was born on the 3rd of December, 1883. Then said they were mistaken, that it was the 3rd of December, 1885. If she was born in December, 1883, she was over twenty-five years of age. If she was born in December, 1885, she was just under twenty-four years of age at the time she says she was seduced in the winter of 1909. Why Dr. Shadden was selected to go with her to Houston and the purpose of that is not explained, but stated as a fact. Nobody except herself testified with reference to the birth of the child. Her mother testified that she suspected her pregnancy, which the girl at first denied but finally admitted, and it was after this conversation that she went to Houston. There is no evidence in the record as to the birth of the child in Houston outside of that of the prosecutrix. *Page 334 There is testimony to the effect that this trip to Houston was in 1911 instead of 1910. Dr. Shadden so testified. Upon this point the testimony of the prosecutrix and that of the other witnesses is sharply at issue. She testified that the child was born in May, 1910, and not 1911, and adhered to it and never changed her testimony through all the examinations and cross-examinations. There was a witness used who testified that he carried appellant out of Nacogdoches County in a buggy to some railroad point a few miles away in another county. This witness testified while en route he, appellant, said he was leaving because they were trying to get him in trouble about this girl, and that he had heard that she had trouble with some man, or perhaps was pregnant, or words to that effect, but he had nothing to do with it and was not responsible for it, but was leaving until the thing blew over.
There were numerous letters introduced, which the girl testified were written her by appellant. The verity of those letters or their genuineness depended upon her testimony. Some of them contained expressions of endearment and love and matters of that sort, but none of them referred to anything in the slightest way dishonorable. There is a considerable amount of testimony to the effect that other young men went with her, whose names are all mentioned, and one lived on the place who left. He was attentive to the prosecutrix also. She admits all this in her testimony. But her testimony indicates that appellant went with her more than any one of the others. This may be a sufficient statement of the facts for what I desire to write.
It is contended this evidence is not sufficient. This contention I believe should have been sustained. Her evidence makes it certain that her intercourse with appellant happened in the winter of 1909, after the engagement in the previous June or July, and that her child was born on the following 7th of May, 1910. If he was engaged to her in June or July and did not have intercourse with her until the winter of 1909, or even before the month of December, 1909, as she says it did not occur that month, the child being born on the 7th of May, this would preclude the idea that it was the offspring of appellant. If the intercourse occurred about six weeks before Christmas, 1909, as her testimony would indicate, it is evident that some other party had had intercourse with her prior to that time and was the father of her child. From that viewpoint this could not be a case of seduction. If the child was born on the 7th of May, 1911, then, as a matter of course, it was not appellant's child, because he ceased to have intercourse with her in the winter of 1909, and the girl swears positively he only had intercourse with her for about two months, when that relation ceased between them, and that was in the winter of 1909. So it would make no difference from any viewpoint of her testimony, the child could not be that of appellant, and she swears positively that appellant was the father of her child, and says he was the only man who had intercourse with her. The State undertook to shake her testimony and show it was not in the winter time but prior to that that the intercourse occurred, but she declined positively to make such statement, and swore *Page 335 it was in the winter time, and that her child was born on the 7th day of May, 1910. So, as I understand this record, accepting her testimony as true in every respect, except as to the year, that she was mistaken as to the time of the engagement, and that it was 1910 instead of 1909, though she states emphatically it was 1909, from that viewpoint this case is unexplainable upon any hypothesis that would lead to the crime of seduction on the part of appellant, but if we look at the facts from the standpoint of the prosecutrix and the prosecution, and her statement of the time of the engagement, and the time she repeatedly says was the time of the first act of sexual intercourse, and the time that her child was born, still appellant would not be guilty of the crime of seduction from the State's own testimony as detailed by this girl. If she was engaged to appellant, as she states, in June or July, before the child was born the following 7th of May, and that she had intercourse with him the first time in the winter time, whether it was in the winter time of 1909 or 1910, and the child was born the following 7th of May, whether 1910 or 1911, appellant would not be the author of her shame and could not be. Some other man had a hand in the business. She could not be engaged any year in June or July and only have intercourse for the first time the following winter and her child be born on the following 7th of May. This would not make a crime of seduction against appellant. She had been previously intimate with some other party if her testimony is true. Some other man was the father of that child. This would be so in any case except seduction if the laws of nature mean anything. I do not believe that the laws of nature were suspended with reference to this case. It is said that gestation is freaky with reference to the first child, but this case will hardly come within any such peculiarity.
There is a bill of exceptions in this record that in my opinion requires a reversal of the judgment. The matter is made a little prolix by reason of the qualification of the judge. This bill recites the prosecutrix was recalled to the witness stand by the defendant for the purpose of fixing a date and perhaps laying the predicate for impeachment, either or both. She was asked this question: "Now, I am not sure, but I believe I asked you the question yesterday, if you didn't tell Mr. Grimes that you were in the condition, with child, I mean, away back more than a year before the time you stated in your testimony yesterday, as the time you first had sexual intercourse with Mr. Grimes. Did I ask you that question? State's counsel replied, `We object to it; she answered the question.' The court replied, `Yes, she was asked that question yesterday, and she said she didn't tell him.' Defendant's counsel then said, `Then, I want to ask the question again.' State: `We object to that, for it is just repetition, if the court please.' Court: `Yes, I am sure she answered the question, judge.' Defendant: `I want to ask the question again, if the court please, for I am sure she didn't answer it like the court says she did.' Court: `The objection will be sustained; there is no question but what she answered it yesterday; you asked her the question, and she answered it.' Defendant: `We *Page 336 excepted to the ruling of the court. We were studying about that last night, and my recollection is, she answered to the contrary, to what the court understood.' State: `She answered positively she did not.' Court: `I think she did; you can have the benefit of it, judge, and the objection will be sustained.'
"On the previous day prosecutrix was asked the following question, on this same line, and gave the following answers: Q. `I will ask you if you didn't have a conversation with Mr. Grimes, in which you told him that you were in that condition, more than a year before, and try to get Mr. Grimes to marry you, more than a year before you were in that condition, actually?' A. `Say, I wrote him a letter saying that?' Q. No, ma'am, I asked you that a while ago, and the court said you couldn't answer it; now I am asking you this question, I asked you, if you didn't have a conversation with Mr. Grimes, in which you told him, that you were in that condition, and wanted him to marry you, more than a year before you were actually in that condition?' A. `No, sir; I did not.' Q. `Do you remember about telling him that you were walking to Melrose, or did walk to Melrose instead of riding, thinking that perhaps it would bring back your natural monthly period?' A. `Why, I walked over there one day, but I did not go for that purpose.' Q. `I asked you if you didn't remember telling him that you did, and for that purpose?' A. `Yes, I do remember that, yes, sir.' Q. `Now, do you remember when that was?' A. `No, sir.' Q. `Now, you did tell him, though, that you were in that condition at that time, and that he ought to marry you?' A. `Why, sure, I told him that.' Q. `And whenever that was, these things did take place, and you told him that?' A. `Yes, sir; I did.'" The bill is very lengthy, and the court signs the bill with this statement: "This bill of exceptions is approved by reference to the statement of facts in this case, and particularly all testimony contained on these points." Now referring to the statement of facts, as the trial judge says must be done, on this question, I find it in this condition: "Now, you wrote Mr. Grimes one letter in which you told him that you were in that condition, away back one year before this occurred, about? State: We object, the letter would be the best evidence. Court: Yes, I think you would have to show about the letter — account for it. Defendant: Yes, sir; all right, we except to the ruling of the court. Q. I will ask you if you didn't have a conversation with Mr. Grimes in which you told him you were in that condition more than one year before, and try to get Mr. Grimes to marry you, more than a year before you were in that condition, actually? A. Say, I wrote him a letter saying that? Q. No, ma'am, I asked you that a while ago and the court said you couldn't answer it; now I am asking you this question, I asked you if you didn't have a conversation with Mr. Grimes in which you told him that you were in that condition and wanted him to marry you, more than a year before you were actually in that condition? A. No, sir; I did not. Q. Do you remember about telling him that you were walking to Melrose, or did walk to Melrose instead of riding, thinking that perhaps it would bring *Page 337 back your natural monthly period? A. Why, I walked over there one day but I didn't go for that purpose. Q. I asked you if you didn't remember telling him that you did and for that purpose? A. Yes, I do remember that, yes, sir. Q. Now, do you remember when that was? A. No, sir. Q. Now, you did tell him, though, that you were in that condition at that time and that he ought to marry you? A. Why, sure I told him that. Q. And whenever that was, these things did take place and you told him that? A. Yes, sir; I did."
These statements are copied from the bill of exceptions and statement of facts, to which the trial court referred. This makes it evident the court would not permit the defendant to prove that the girl had written the letter inquired about. I think he ought to have been permitted to prove that, but when the court ruled that out appellant then sought to prove that more than a year before her engagement or intercourse she had a conversation with appellant in which she told him of her condition, and wanted him to marry her; but she replied, no, she did not have such a conversation. But following this she did admit and state she went to Melrose and walked but not for the purpose of bringing on her monthly period, but she did walk over there, and that she told appellant about her condition, and wanted him to marry her. She says, "Why, sure I told him that," and that these matters occurred between them. Now from reading this statement of facts the ordinary mind would reach the conclusion that it left the date of that conversation in doubt. She first denied that she had had a conversation with appellant about a year before, but upon further examination she admitted she had such conversation with him, and that she had walked to Melrose. She was called back to the witness stand to fix that date. The court, before the jury, refused not only to let appellant fix a date, which he had a right to do, it being one of the most important questions in the case, but informed the jury that she had denied the whole thing, therefore not only refusing to let him fix the date, but stated himself that the witness had denied the whole thing. If this is not an expression on the part of the court as to what the testimony of this witness was, and against the facts to which he refers, then the writer does not understand this record. She admitted and testified as shown by the bill of exceptions and by the statement of facts that she had such a conversation with appellant, and all through the questions and answers the intimation and indication is that it occurred long prior to the time that she states the engagement or intercourse occurred. The court's statement in the presence of the jury, and in answer to defendant, refusing to let him go into these questions, that she had denied the whole thing, and would not let the matter be investigated both as to the conversation as to the date of it, was unauthorized. The writer does not understand that there could be a much more important question in this case. If the witness would have located that conversation as this record would seem to indicate as being prior to the time of the engagement, as she was then charging him with having had intercourse *Page 338 with her, from which she was pregnant and asking him then to marry her out of it, it would be the most important and cogent testimony. That if true, would show beyond any question that the illicit relations between them had occurred long prior to the engagement in 1909. If the illicit relations were then existent and she thought she was pregnant, and she was trying to induce him to marry her, whether pregnant or not, it would indicate and show to the jury that this illicit relation existed without any reference to the subsequent promise of marriage. I can imagine no more important fact in the case than this particular fact, especially under the circumstances shown by this record. Not only that, but the statute prohibits the judge from giving his views of the testimony, or his statement about it or comment on the weight of it. The statute prohibits the trial judge from making such comments. The record shows she made the statements with some doubt as to the date of the conversation, and the court used the first answer and stated she did not make such statement, when later she did, and refused appellant the right to investigate the matter and fix the date. This, it occurs to me, is an error of the most serious nature. If the girl had, as anticipated, and as this record indicates, testified that this conversation occurred prior to her engagement in June or July, 1909, which she stated as a fact, this case of seduction would have passed out under such conditions it could not be seduction. An unchaste woman can not be seduced, and if appellant had had intercourse with her prior to the engagement, that engagement did not and could not make it a case of seduction, although he may have subsequently had intercourse with her. If the trial judge wanted to testify about this matter he should have taken the witness stand, to sustain her as he understood and not announced the fact as judge from the bench without permitting the examination of the witness as to the condition of things. He was not the witness; the woman was the witness.
There is another matter that, in my judgment, shows error. Prosecutrix was asked by appellant on cross-examination if she had ever had sexual relation with any man except defendant, to which she replied she had not. That on the occasion of their first act of intercourse they got out of the buggy and went some thirty or forty steps into the brush and there had the intercourse. Appellant's counsel then asked this question: "Did you have any sexual desire?" The State objected. Defendant's counsel then asked this question: "Did you have any sexual desire for him, the defendant?" This was objected to, and the objections were sustained. This all happened on cross-examination and was legitimate, and should have been permitted. The sexual intercourse matter was a serious one in the case, of course, and without which there could be no seduction, and the relation of the parties and her mental and physical condition at the time were important matters. She testified that he agreed to protect her from any consequences of the act, and would use a rubber shield so as to insure that protection. Now, on cross-examination he should have been permitted to show whether it was a cold-blooded affair or whether she was in love with the man or *Page 339 had any idea of sexual intercourse with him so far as passion was concerned. It did enter into this case, and was the subject of legitimate examination. This may not have been a very serious matter, but still it should have been permitted. In support of the proposition that the court was in error in his remarks to the jury and in refusing to let appellant fix the date of that prior conversation, a great number of authorities might be cited, but it seems to me it is so well known to the profession and so well settled in the jurisprudence of the State that it is unnecessary to cite them.
There are other matters in the case that I might refer to, but I do not care to extend this matter further. This case ought to have been reversed and appellant awarded another trial.
For the reasons indicated I withhold my assent to the affirmance of this judgment.
[This case did not reach the hands of the Reporter until July, 1915. — Reporter.]