On Motion for Rehearing. By both oral and written argument the motion for rehearing in this cause has been urged by counsel for appellee, and at the expense of being thought tedious we feel like adding that, as noted in the original opinion of the majority, the ground for divorce relied on by plaintiff was that on a certain date and in the town of Mineral Wells his wife was taken in adultery with Dee Price. By the provisions of article 4633 of our Statutes, the burden was upon him to sustain that charge by "full and satisfactory evidence." Mr. Webster defines the word "full" as follows:
"The highest state, point, or degree; complete measure; fullest or utmost extent; fullness."
In Greenleaf on Evidence, § 2, the following definition is given:
"By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily satisfies an unprejudiced mind beyond reasonable doubt."
That definition was quoted with approval by this court in Moore v. Stone, 36 S.W. 909; and many decisions of this state, some of which are cited in that case, were substantially to the same effect. In Baines v. Ullmann, 71 Tex. 529, 9 S.W. 543, it was said:
"Evidence is said to satisfy the mind when it is such as frees the mind from doubt, suspense, or uncertainty."
The language used in article 4633, with respect to the quantum of proof required of plaintiff in order to obtain a divorce, was used in its legal significance, and imposes, substantially, the same burden as that imposed upon the state in a criminal prosecution to establish guilt by proof beyond a reasonable doubt. In enacting that statute, it is clear that the Legislature deemed the sanctity of the marriage relation, the interests of society and of the parties involved, of equal importance to that of insuring to an individual his freedom from punishment until his guilt is established beyond a reasonable doubt. And why not? By express provisions of article 6826, Paschal's Digest, the ground for a divorce could not be established by the testimony of either party. That statute remained in force until the year 1897, when it was amended by article 4633, Revised Statutes, so as to allow either party to testify. In the case of Stafford v. Stafford, 41 Tex. 117, which was decided under the old statute, the following was said:
"The marriage contract or relation, while classed in its legal acceptation as a civil contract between the parties to it, `yet it is said to be more than a contract, and to differ from all other contracts,' and has interests and legal consequences connected with and resulting from it that make it the most important to society of all human transactions, Its importance is fully appreciated by all civilized nations. * * * While the suit for a divorce is in its form a civil proceeding, it has widely different features and incidents connected with it. In all divorce suits the defendant is charged with a breach of a solemn contract; in many cases, with disgraceful and brutal conduct; in others, with offenses that are known to the law either as a misdemeanor or felony. Again, no judgment of divorce can be rendered by agreement or consent; none by confession or admission of either party; neither can a judgment be rendered by default, and, as in criminal cases, the defendant cannot be compelled to criminate himself by answering or testifying under oath. These facts show that it is in its nature a quasi criminal proceeding, although not presented in the name of the state, nor punished by fine or imprisonment. To allow the husband and wife to give evidence in their divorce suit would not only loosen, weaken, and most injuriously affect the marriage tie, but would greatly tend to destroy or impair that unreserved confidence which exists between husband and wife, and which the wisdom of centuries has sought to preserve by preventing them from testifying against each other (save a limited exception)."
To sustain his charge that his wife was taken in adultery with Dee Price at the time and place alleged, plaintiff relied upon circumstantial evidence alone. The circumstances testified to by himself as taking place at that time and place, while of a suspicious tendency, fall far short of full proof of the charge alleged, even though it be accepted at its face value, and as unaffected by the testimony of defendant and Dee Price, contradicting it. The circumstances testified to by witnesses for plaintiff, and introduced to show that defendant had committed adultery prior to the occasion in controversy, even if taken at their full face value and unaffected by any testimony offered in rebuttal thereof by defendant, likewise fall far short of proof of adultery. The most that could be said of those circumstances would be that they tended to raise a suspicion that adultery might have been committed. Those circumstances were relied on by plaintiff to show that his wife was unchaste, and thus to add probative force to the circumstances testified to by himself. A mere inference founded upon such suspicious circumstances could add little probative force to mere circumstances testified to by plaintiff and relied on to support the further inference of guilt at the time and place alleged.
The foregoing observations are made with respect, solely, to the testimony introduced by plaintiff, without regard to that offered by the defendant, which cannot, in fairness, be wholly ignored. In the first place, both defendant and Dee Price flatly denied guilt of the charge made, although they frankly admitted certain facts, which, if *Page 208 unexplained, were of a suspicious character, and which they could have denied, if they had been inclined to do so. If it be said that their testimony was entitled to little weight, because of self-interest, it may be replied that the testimony of plaintiff himself shows that he entertains very strong feelings of revenge towards the defendant, and it is a matter of common knowledge that such a feeling is as strong an incentive to fabricate testimony as is the impulse of protection of one's own character. In the second place, Dr. Thompson was a disinterested witness, and for that reason his testimony is entitled to at least as much, if not more, weight than that of plaintiff, and according to his testimony, taken in connection with that of plaintiff himself, defendant and Dee Price did not have sufficient time to accomplish the offense charged, even though it should be conceded that they intended so to do; and even their intention, if any, to commit the act, would not be sufficient to sustain the charge alleged.
We should, perhaps, notice an objection to our statement that it was not shown that appellant met a soldier "in the dark." The statement in our original opinion to this effect was not intended to be misleading, as is apparent from an examination of the testimony of the witness who so stated, to wit, the testimony of J. L. Smith, for we set out the testimony on the subject by the witness in full. It will be seen by a review of the testimony of the witness referred to that it was light enough for him to be mowing grass in his yard, to see that appellant was not wearing a veil or other disguise; that the soldier was not wearing an overcoat; that the parties did not come along together; that he saw the parties all the way going to the schoolhouse, "some 200 or 300 yards," after which time he saw the parties no more. We therefore think the inaccuracy referred to cannot be misleading.
We are also asked to certify this ease to the Supreme Court, but the majority do not deem it advisable to do so. By reference to article 1521 of our Revised Statutes, defining the jurisdiction of our Supreme Court, it will be seen that that court has been given jurisdiction over questions of law only. Articles 1590, 1591, V. S. Stats.; Warren v. City of Dennison, 89 Tex. 557, 36 S.W. 404. Article 1590 reads:
"The judgments of the Courts of Civil Appeals shall be conclusive in all cases on the facts of the case."
And article 1591, in so far as pertinent, reads:
"The judgments of the Courts of Civil Appeals shall be conclusive on the law and fact, * * * in the following cases: * * * (4) All cases of divorce."
And in the case of Warren v. City of Dennison, supra, the material issue was whether or not the city had been guilty of negligence, and the court said:
"Whether or not there was any evidence tending to show that it was negligence was a question of law. Whether or not, admitting there was some evidence of negligence, the evidence, taken all together, was such as to warrant the finding of the jury, is a question of fact."
Of like effect, we think, is the case of G., C. S. F. Ry. Co. v. Riordan, 166 S.W. 133, of which the Supreme Court refused to take jurisdiction. Moreover, we think it a matter of very grave importance to the parties in this case that the issue between them shall be determined as speedily as may be done with due observance of their legal rights, and we have every reason to know that a certification of this case to the Supreme Court would result in a long delay.
We accordingly conclude that both the motion for rehearing and to certify should be overruled.