I am of the opinion that the evidence of the facts charged in plaintiff's petition is sufficient, not only to satisfy the minds of the jury by a preponderance of the evidence, but is sufficient to satisfy the mind of the trial judge by full and satisfactory proof. Among the facts tending to show that defendant was guilty of adultery with Price are the following: Plaintiff testified that when he and his wife were at the depot at Denton, preparatory to going to Mineral Falls for a visit, and while he was purchasing the tickets, Dee Price came to where Mrs. McCrary was, and they talked together. The next time he saw Price was at the door of their room at the hotel. Price came up to the room, saying that he was en route to Breckenridge (or Ranger, both are given), and learned that the McCrarys were in Mineral Wells. McCrary asked his wife if he and Price could come into the room, and his wife said the room was not cleaned up. In a short time, McCrary and his little boy started to the bath house, and met Price on the street in front of one of the hotels, and Price asked if he and his wife would like to go riding with him. McCrary said they would, but it would be about an hour and a half before he would be ready. McCrary then went on to the bath house, but, on account of some misunderstanding, did not take a bath. They then went to the bakery and got some cakes, and the little boy began to want to go back to the room. Walking leisurely along, they reached the room and found the door locked. The little boy took hold of the knob and tried to open it, and could not do so; then he began to knock on the door; no reply. The plaintiff walked out on the porch on the east side and found the blinds to the window were pulled down. Then the two went back to the door and knocked, both calling for Mrs. McCrary *Page 206 to let them in. Finally the door was opened by Dee Price. At this juncture, I will quote from plaintiff's testimony as follows:
"When Dee Price opened the door, he was standing there with his pants all unbuttoned, and my wife was sitting in front of the mirror with some false hair, pretending like she was pinning that on her head. The room was in a worse condition then than it was at the time she refused to let Dee Price in when I was present; her corset was on the back of a chair, and on the bed opposite mine lay her silk drawers. I had never seen those silk drawers before. When I got into the room and saw Dee Price in that condition, I hardly know what I did. I said, `What does this mean?' and he said, `It don't mean anything;' and I said, `If it don't mean anything, what are you doing standing there with your pants unbuttoned?' And while he was making this talk he got back in the door with the door open; he had his hand on this door, holding it, and I said to my wife, `I have always tried to respect you; I had no idea you would start whoring around this way;' and I run my hand back, and took out my knife and opened it, and started toward Price, and when I did that, she walked up and says, `You stand there,' and then Price pulled the door to. When I got in there she had a loose apron slipped over her head. When I started towards Price, she then opened the door, and I told her to get out, and she got out; that is about all that happened, so far as I know; after she was outside, I locked the door."
Plaintiff testified that it was from one minute to two minutes after he and his little boy knocked at the door before he got in. Several witnesses testified to having seen Dec Price and the defendant sitting together at picture shows in Denton; one stating that, when she saw them, Price was holding defendant's hand. Other witnesses testified to having seen Mrs. McCrary meet a soldier at night several times, and then they would go off together towards the school grounds near by. Other witnesses testified to having seen Price take Mrs. McCrary in his car and drive off together. A Mrs. Price, not related to Dee Price, testified to having received from Mrs. McCrary a letter, in which the defendant said she was going to Fort Worth by way of Dallas to spend the night, and she wanted Mrs. Price to tell the plaintiff that she was out to the home of Mrs. Price at the time. Mrs. McCrary admitted that she wrote the letter, and that she spent the night in Dallas. Mrs. Price further testified that Mrs. McCrary had often boasted to her that "John [her husband] was easy to fool," and that she could "put over anything she wanted to on him."
Defendant denied any improper conduct with Dee Price or any other man. She stated that Dee Price had just come into the room to tell her that he had made arrangements to take a ride with a veterinary surgeon, and could not take her and family riding as he had agreed with plaintiff. She claimed that he had been in the room only a few minutes when her husband knocked, and nothing improper had occurred between them. She stated that the reason the door was locked was that it would not stay closed unless fastened by a hook inside. Plaintiff denied this, claiming that the door could be closed and held by the lock, in addition to the hook inside.
Several witnesses testified to have seen Dee Price at various times in Denton with his pants in front unbuttoned. Some of the times mentioned by these witnesses were after the occurrence at Mineral Wells, and some of the witnesses said it was "some time last spring." One witness testified that he remembered the date, May 16th. The occurrence at Mineral Wells was on May 14th. The jury and trial court were justified in concluding that Dee Price was showing himself around Denton, after the occurrence at Mineral Wells, with his pants unbuttoned, for the purpose of making evidence for himself.
No explanation is given by Mrs. McCrary of the trip to Dallas. It was not to visit the Keatings, for they lived in Fort Worth, and she says she had phoned them she was not coming. Nor is there any explanation of her meeting a soldier at various times in the evening, or at night (as testified by one witness), and their going off together towards the unoccupied schoolhouse. I do not think the rule applicable in criminal cases, that the guilt of the defendant must be established beyond a reasonable doubt, is applicable here. It is only that the evidence must be full and satisfactory to the unprejudiced mind of an impartial judge. In my opinion it is in this case.
Without quoting further from the evidence, and without further discussion, I am of the opinion that the evidence is sufficient to sustain the trial court's finding that the facts relied on by plaintiff had been established by full and satisfactory proof. As said by Lord Stowell in an early English case (Loveden v. Loveden, 2 Hag. Con. 2):
"It is not necessary to prove the direct facts of adultery; for, being committed in secret, it it seldom susceptible of proof, except by circumstances which, however, are sufficient whenever they would lead the guarded discretion of a reasonable and just man to a conclusion of guilt."
9 R.C.L. p. 329, after quoting the English case above, goes on to say:
"The courts must, perforce, take such evidence as the nature of the case permits — circumstantial, direct, or positive — and bring to bear upon it the experiences and observations of life, and thus weighing it with prudence and care give effect to its just preponderance." *Page 207