Mrous v. State

Counsel

Jay Minter and George C. Altgelt, for appellant. — The court erred in that portion of the second section of its charge which instructs the jury, that "the seduced female is competent to testify as a witness, but no conviction shall be bad upon the testimony of said female unless the same is corroborated by other evidence lending to connect the defendant with the offense charged." The court erred in so instructing the jury, because the alleged offense, if at all, was committed long prior, to-wit, on. July 9, 1890, to the Act of March 11, 1891, rendering the prosecuting witness competent, and by said charge the court gave said act of the Legislature an ex post facto application in requiring a less degree of proof to convict defendant. A law that changes a rule of evidence, so as to require less evidence to convict than the law did at the time of the commission of the offense, is ex post facto. Ord. Const. Leg., pp. 222-224; Cool. Const. Lim., ed. 1890, p. 1319 et seq. The fifth section of the court's charge was fundamental error, in this, that it conveyed to the Jury an erroneous definition of the offense of seduction. It made defendant's guilt or innocence depend upon defendant's knowledge of the character of the said prosecuting witness, and knowledge of tier character for want of chastity. If this was a civil suit for damages, brought against appellant by prosecuting witness on account of appellant refusing to perform the promise of marriage, such a charge might be correct; but in a criminal prosecution for seduction, the bad character and general reputation for chastity of the injured female is always admissible as a defense. Appellant's acquaintance with the prosecuting witness, Tina Gorzell, and his knowledge of tier character, or his opportunities of knowing tier character in the community where they both lived and were reared, can not deprive him of the defense offered. It may be true that appellant was not an innocent purchaser without notice when he made the promise. The whole case discloses rather a case of prostitution or fornication than a case of seduction. The criminal law never intended to protect the harlot; she has no virtue to lose. The law intended to protect virtue and innocence against wily men, who might by promise of marriage overcome even honest women. The policy of the law is not to compel a man to redeem a promise of marriage given a prostitute; it is better to leave a bad man and worse woman where it finds them — in pari delicto. The term seduce, even 11 as commonly understood," means more than sexual intercourse in consequence of a promise to marry. The People v. Clark, 33 Mich. 112 . R.L. Henry, Assistant Attorney-General, for the State. — 1. Asaproposition, the State submits, that if appellant had carnal intercourse with the girl Tina Gorzell, promising at the time to marry her, he was guilty of the crime of seduction. The facts amply sustain this proposition. In regard to the charge on the necessary facts to be proved, see Putman v. The State, 29 Texas Court of Appeals 454[ 29 Tex. Crim. 454 ]. 2. Appellant contends that the crime of seduction, if any, was committed on the 9th of July, 1890; that the trial occurred sometime afterwards; that the law permitting the seduced female to testify did not take effect until the 14th day of July, 1891, and that therefore the action of the court in placing the seduced female on the stand to testify to the transaction was retroactive and ex post facto in its nature, and in violation of the Constitution of the United States. There are authorities in this State holding, that if a change in the law requires less evidence or different evidence to convict in a criminal prosecution, it is ex post facto in its nature. I Texas Ct. App., 417; 2 Tex. 363 ; 6 Tex. 347 . The State submits as a proposition, that permitting the seduced female to testify is not changing a rule of evidence or requiring a different rule of evidence, but is simply permitting that a prosecution may be sustained by the same degree of evidence through different sources. The authorities quoted by appellant are not in point. To show the difference, the following quotation is made: "A statute which enlarges the class of persons who may be competent as witnesses is not ex post facto in its application to offenses previously committed, for it does not attach criminality to any act previously done, and which was innocent when done, nor aggravate past crimes, nor increase the punishment therefor; nor does it alter the degree or lessen the amount or measure of the proof made necessary to conviction for such offenses. Such alterations relate to modes of procedure only, which the State may regulate at pleasure, and in which no one can be said to have a vested right." Suth. Stat. Con., sec. 468, p. 607; Hopt, v. Utah, 110 U.S. 574 ; Laughlin v. The Commonwealth, 13 Bush, 261; Hart v. The State, 40 Ala. 32 .