Appellant was prosecuted and convicted of fornication. He waived a jury and tried his case before the judge, who found him guilty and assessed a $250 fine as his punishment.
The woman with whom he is charged to have committed this offense was Kittie Ensby. On her direct examination she testified:
"My name is Kittie Ensby. I have lived in Houston two years. I came here in January, 1913. I came by myself. Since I came here I have been working at Levy Brothers' Dry Goods Store. After I came here I lived with Mr. Nye, the defendant. I first began living with him along about May, 1911, and I began to live with him in Houston after I came here in 1913. I do not know just the exact date to which I continued to live with him, but it was up to about a month ago, some time in February, 1915. During the time I lived with the defendant in Houston our room was at Mr. Lieder's residence. We had the same room there, occupied it and slept together there. He had carnal intercourse with me during the time I lived with him here in Houston. I am not a married woman. I know about the defendant marrying recently. It has been about two weeks ago that he married; I am not positive of the exact date. I do not know where he and his wife are now living." This is the whole of her testimony on direct examination.
Appellant's defense, as we understand it, was that this woman was his common law wife, and, therefore, his cohabiting and carnal intercourse with her would not make him guilty of fornication.
After Kittie Ensby had so testified on direct examination, she was cross-examined. Then after that was concluded, redirectly examined, and this occurred back and forth several times. The trend of these examinations might tend to show some facts indicating a common law marriage between these parties; yet, when it is considered as a whole, the reasonable conclusion only can be drawn that their apparently assumed relationship of husband and wife was merely for the purpose of covering up and preventing detection in their real illicit relationship, or as expressed by the judge before whom the case was tried, in his qualification to one bill, as follows: "The court was of the opinion and found as a fact that both defendant and Miss Ensby were unmarried *Page 391 at the time of the alleged fornication and that the arrangement that had been made between them was, in substance and actual effect, to appear married rather than to be married and thus cover up their illicit relations." And as expressed by the judge in his qualification of the other bill: "The court found from the evidence that such arrangement as existed between defendant and Miss Ensby was merely to cover up their illicit relations and its purpose was to insure that the parties appear married without being married."
We think it unnecessary to go into a detailed statement of this woman's testimony, which establishes the state of facts as found by the trial judge. Suffice it to say, that the effect of it is that she claims they first met in Nebraska in January, 1911; that about May, 1911, as expressed by her in one place in her testimony: "I said to him, `let's live together as man and wife,' and he said, `all right,' and no mention was ever made of a ceremony or anything of that sort." And in another place she says the proposition to thus live together came from her and not from him. She then shows that they announced it to their friends that they were married and that they went on living together as husband and wife would; that he traveled for a while, and in some of his travels she went about with him and they registered as man and wife; that they were not together all the time but were separated a part of this time, presumably because of his traveling about or her visiting others; that in about January, 1913, he landed in Houston, and six weeks later she followed him there and they renewed their relationship at Houston and continued such relationship until he married another woman under a regular license and by a proper officer in Houston on March 2, 1915.
There is an entire absence of any evidence whatever showing that before they assumed the said relationship that he wooed and won her for his real wife. In one place she testified that at the time of the said agreement that they were to live together as man and wife, it was made at her instance and suggestion, and she said: "I thought some day I would be his wife. I was his wife then, but by saying that some day I thought I would be his wife I mean that I thought that some day we would get a marriage license and go through the ceremony." She says at that time she really intended and expected to be his wife some time and shethought that was his intention; that he said it was. In another place she says: "Mr. Nye did not tell me recently that our marriage was a mock marriage. I knew I was not married to him and he did not have to tell me I was not. I did not regard myself as his legal wife. I went by his name for protection, so that people would not know how we came to be living together." In another place she said: "I do not know what Mr. Nye intended when we first went together. I do know that he is not living with me now. I have not talked to him with reference to his being married again. I do not know the exact date we quit living together, but it is somewhere in the neighborhood of a month. As to the reason I took Mr. Nye's name, we agreed to be man and wife and naturally I would take his *Page 392 name. I do not still claim to be his wife. I could not very well be his wife now. He has got another one now."
It is beyond controversy the law of this State that a real common law marriage properly agreed to by both parties and properly consummated by both, is a valid and legal marriage. (Griggsby v. Reib, 105 Tex. 597, 153 S.W. Rep., 1124; Melton v. State, 71 Tex.Crim. Rep., 158 S.W. Rep., 550.) And if these parties had really thus been married appellant would not have been guilty, even though without a divorce he subsequently attempted to legally marry and would otherwise have legally married another woman. As the testimony in this case, without any sort of doubt, authorized the trial judge to find that these parties were not thus married, we deem it unnecessary to discuss this question further.
As the question of appellant's intent in the sexual relation between him and said woman, Miss Ensby, was a material inquiry, the marriage license procured by him on March 2, 1915, authorizing him to marry Lennie B. Williams, another woman, and the return thereon showing that he did so marry her on that date, was clearly admissible. Not only did the testimony of said woman, Kittie Ensby, show that they were not legally married under the common law, but his act of marrying another woman without any pretense of a divorce from her, would show and tend to show that he never intended that the relationship that existed between him and said Kittie Ensby was really and truly that of husband and wife. His acts showing his intent speak louder than words. Even though the intention of the woman was that they should be husband and wife, her intention could not control. It took the intent of both and each of them, and if his intent was lacking there could be no common law marriage, even though that might have been her intention.
We have carefully examined the record in this case and read and studied the evidence, in addition to hearing appellant's attorney read it in the submission of the case, and we think, without doubt, the correct conclusion was reached by the trial judge, and the judgment is affirmed.
Affirmed.
[Rehearing denied October 13, 1915. — Reporter.]