Barnard v. State

Appellant was convicted of seduction—the punishment being fixed at a fine of $2,000. The former appeal of. this ease will be found reported in the 8 Texas Ct. Rep., 386.

*113 Appellant insists that the evidence is not sufficient to show that prosecutrix was seduced, as that word is used in the statute, and construed by this court. In our opinion the evidence amply supports the conviction, and shows perfect corroboration of the prosecutrix as to the seduction. The charge of the court in all respects complies with Putnam v. State, 29 Texas Crim. App., 454, and Barnes v. State, 37 Texas Crim. Rep., 320, and the opinion on the former appeal of this case. All of the special charges requested by appellant, so far as applicable to the facts, were given in the main charge of the court.

The district attorney in his argument used this language: “When the baby was only three daj^s old, defendant goes to the house where prosecutrix was in bed; he saw the baby, and said to Mrs. Reese it was his baby and he wanted it (meaning the baby) ; and now gentlemen, who has denied it?” Appellant excepted to this statement of the State’s counsel on the ground that the same was a reference to the failure of the defendant to testify—the facts showing that defendant was the only one who could deny it. The record shows that the testimony was introduced showing defendant made this statement in the presence of prosecutrix’ mother, as stated by the district attorney. In Bruce v. State, 53 S. W. Rep., 867, we held that the statement of the prosecuting attorney in his closing argument in the case in which defendant did not testify, asking why, if an alleged omission by the accused was not true, did they not put some one on the stand to disprove it,— was not error. The writer believes the Bruce case announced a correct proposition of law; but the majority of the court hold that Washington v. State, 8 Texas Ct. Rep., 944; Hanna v. State, 10 Texas Ct. Rep., 40, and Wallace v. State, 81 S. W. Rep., 966, support appellant’s contention, that the above statement is an allusion to the failure of the defendant to testify, and requires a reversal. The majority of the court overrule the Bruce case, supra. The writer does not agree with this, and believes the language of the district attorney is not susceptible to the criticism made. I do not believe that any statement from which an inference might be drawn that the defendant did not testify should authorize reversal. There should,be some direct affirmative allusion to the failure of the defendant to testify, before this court should reverse. However, under the holding of the majority of the court, on account of the language of the district attorney above copied, the judgment is reversed and the cause remanded.

Reversed and remanded.