Appellant was convicted of seduction, and awarded a term of five years confinement in the penitentiary.
Numerous questions are presented in the record, but as they are *Page 248 not likely to occur upon another trial, it is unnecessary to mention them.
In the trial of the case two witnesses testified, to wit: Sam Sinclair and Rich Akard, that each had intercourse with prosecutrix on several occasions, and at a time anterior to the intercourse between the defendant and prosecutrix. The court in his charge to the jury omitted to instruct them upon this issue, but simply directed the jury that if they believed that the prosecutrix was under twenty-five years of age and defendant had intercourse with her and the same was under a promise of marriage, and she yielded her virtue in consideration of that promise, he would be guilty of the offense. The court instructed the jury that seduction means to lead an unmarried female under the age of twenty-five years away from the path of virtue, to entice or persuade her by means of a promise of marriage to surrender her chastity, and nowhere in the charge did he instruct the jury that if at the time she had intercourse with the defendant under a promise of marriage she was an unchaste woman and had surrendered her person to other men, the defendant could not be guilty. Appellant requested the court to charge the jury that though they might believe that prosecutrix yielded to the defendant under a promise of marriage and that he had intercourse with her, yet if they believe from the evidence that before such promise of marriage, if any, the prosecutrix had had carnal intercourse with some other person or persons, then it would be their duty to acquit. This charge was refused. The facts of the case call for such a charge, and it was error for the court to fail to thus instruct the jury, for if she was not a chaste woman and had before that time had intercourse with other men, she would not be the subject of seduction as that term is known to the law. See Vantrees v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 383.
For the error indicated the judgment is reversed and the cause is remanded.
Reversed and remanded.
ON REHEARING. February 22, 1911.