# Moss v. State > Court of Criminal Appeals of Texas · March 21, 1923 · 96 Tex. Crim. 198 URL: https://www.frixlaw.com/law-library/cases/3928107 ## Case - **Full name:** Jeff Moss v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 21, 1923 - **Citations:** 96 Tex. Crim. 198; 256 S.W. 916; 1923 Tex. Crim. App. LEXIS 840 - **Precedential status:** Published - **Opinion:** Addendum by Lattimore - **Judges:** Lattimore - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3928107 ## Opinion text ON REHEARING. January 2, 1924. LATTIMORE, Judge. — It It is again insisted that the testimony of Dr. Douglass detailing the conversation had with appellant, was wrongfully admitted, it being urged that in such testimony there was nothing to point out or individuate prosecutrix as the person had in mind by appellant in what he said to the doctor. The dissenting opinion in Knight v. State, 64 Texas Crim. Rep., 541 , 144 S. W. Rep. 992 , is cited and chiefly relied on as authority for the contention. The distinguished writer of said dissent discusses at length the inadmissibility of certain statements attributed to the accused which were put in evidence against him in that .case, and it is clearly shown that in the opinion of the writer the person or persons referred to by the accused could not have been the prosecutrix in that ease. We find such *204 expressions used in the opinion as the following: “This testimony shows that he could not have referred at the time to prosecutrix or intended to individuate her in any manner as the party to whom he referred.” After full discussion the conclusion of the writer is thus.expressed: “In order that this evidence could have any bearing in this ease it must in some way connect itself with prosecutrix or show by the facts that appellant had her in mind at the time he had the conversation with the two witnesses.” We are in accord with the principle announced in this conclusion. We know of no ease holding that the person referred to in a statement of the accused offered against him as a criminating circumstance, must be named. The rule applicable is stated in our former opinion. In Hinman v. State, 59 Texas Grim. Rep. 32 it was in testimony that the accused said to a witness that he contemplated stealing a girl and wanted the witness to help him. This was objected to. It appeared by other testimony that the accused tried to get others to take the girl to Eastland so that he could marry her. This court, speaking through Judge Ramsey, with the concurrence of the other judges, said: “In view of the relations of the parties, their frequent association, and the fact that several of the witnesses say that appellant was madly in love with Miss Barefield, and in the absence of any testimony that his remark about stealing a girl could have had application to anyone else, we think it is so connected with and had such evident and certain relation to Miss Barefield as to render it clearly admissible. ’ ’ In Merrell v. State, 70 S. W. 981 , a seduction case, this court said : “Statements of the appellant which are criminative in their nature and which tend to connect him with the crime committed are always admissible.” We regard these as conclusive against the contention of the appellant. While the prosecutrix was not named in the conversation, the other evidence in the case so strongly tended to bear out the theory that she was the girl had in mind by him in what he said to the doctor as to make his statements susceptible of probative force. It is also urged that the trial court should have given a requested special charge containing the proposition that if the prosecutrix submitted to appellant on a conditional promise to marry, he would not be guilty. The only evidence raising such issue was that of the prosecutrix when she said that she had been engaged to appellant for some time and that he told her they would get married as soon as he could sell some land and get ready to marry her. The special charge was as follows: “Gentlemen of the Jury: You are further instructed as a part of the law of this case, that if you believe from the evidence herein that the promise of marriage, if any, alleged to have been made by the defendant to the prosecuting witness, Ruby Light, was a conditional *205 promise based upon the happening of something in the future, then you are instructed that such conditional promise is not such a promise upon which a prosecution of seduction could be based.” Appellant insists that in announcing the principle applicable we misunderstood the effect of the opinion in Barnes v. State, 37 Texas Crim. Rep. 328 , cited by ús. We do not think so. In that case there was some testimony tending to support the proposition that the accused said to prosecutrix, among other things, that he would marry her when he got out of his trouble (meaning a criminal prosecution pending against him). We held, Judge Davidson writing for the court, that this was not such conditional promise as would affect the question of seduction and that such a promise could but relate to the time of, and not to the fact of, such future marriage; and that the special charge asked in this regard was properly refused. In our opinion the authority was directly pertinent. A promise to marry as soon as he could sell certain land could but relate to the time of and not to fact of such promise to marry. If a woman yielded through lust, fear or a promise to marry if she become pregnant, etc., this would have no relation to the question of the time of the marriage or when same should take place, and would remove from the act of carnal knowledge a factor absolutely necessary in seduction, i. e. that the woman yielded in reliance only upon a promise to marry. Simmons v. State, 54 Texas Crim. Rep. 625 ; Mulhouse v. State, 56 Texas Crim. Rep. 288 ; Browning v. State, 64 Texas Crim. Rep. 148 ; Hunt v. State, 85 Texas Crim. Rep. 622 . Regretting our inability to agree with any of the contentions made by the accused, the motion for rehearing will be overruled. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3928107. Public record. Not legal advice.