Appellant was convicted of rape, and his punishment assessed at confinement in the penitentiary for a term of twenty years.
The indictment charges the crime to have been committed on the 7th day of July, 1901, by the use of force, threats and fraud. The following is substantially the facts proved: Prosecutrix, about 22 years of age, lived at Coppell, a small village in Dallas County. Appellant was keeping a saloon for his father, and frequently visited the prosecutrix, Rosa Parrish. Appellant was about 20 years of age. After associating together for some time they came to Dallas on July 7th. Prosecutrix states that, after reaching Dallas, appellant took her to the Alamo Hotel, *Page 356 secured a room, and after awhile came back with a party, whom he introduced as Rev. Brown. Thereupon, in the presence of some of the inmates of the hotel, said Brown proceeded to perform the rites of matrimony between prosecutrix and appellant. Appellant said he had secured a license in Cleburne, Johnson County, authorizing said marriage. After the marriage was performed said Brown wrote out what was said to be a certificate, certifying to having performed the marriage, and gave the license, with the certificate, to appellant, for which service appellant paid said Brown some money, but she did not know how much. Thereupon the parties who witnessed the marriage, together with the minister, departed, and she and appellant went to bed in the room, and stayed there three or four hours. They then went back to prosecutrix's home, some sixteen or seventeen miles from Dallas, stopping on the way at a physician's to stay all night. Prosecutrix was accidentally shot in the leg just before reaching the physician's, and they stopped there for medical assistance. After prosecutrix returned home, appellant accompanying her, he left. A short while after this appellant went to San Antonio and from there various letters were written, making the utmost asseverations of love and fealty on the part of appellant to prosecutrix. However, after returning from San Antonio, appellant informed prosecutrix that he had received a letter from said Brown, who was reputed to have performed the marriage ceremony, informing appellant that the marriage was a farce, and that he was not a clergyman, nor did he have any license to perform the marriage. This letter was shown to prosecutrix by appellant. Prosecutrix, however, states that appellant pacified her over this condition under assurance that he would rectify the matter as soon as he should be able by a legal marriage, and would make her his wife. Subsequent to his going to San Antonio he came back to Dallas, and lived there for some time. From Dallas he also wrote various letters to her, still protesting fealty and love, promising to bring her to live with him after awhile. On several occasions prosecutrix visited appellant in Dallas, and stayed in hotels all night with him. In the latter part of October or first of November they stopped at the National Hotel. Mrs. Ray, the proprietress thereof, testified that appellant introduced prosecutrix to her as Mrs. Rosa Parrish. This was prosecutrix's real name. The clerk of the hotel testified that appellant told him prosecutrix was his wife, and they occupied the same room at the hotel. On another occasion they went to a boarding house run by Mrs. Rath, and appellant there told his name as Parrish and that prosecutrix was Mrs. Parrish. At this place he secured for prosecutrix and himself a week's board, paying for the same in advance. Prosecutrix stayed there three days, and left with him. They left the house during the night, upon ascertaining the fact that Mrs. Rath had discovered their deception. There is a great deal of evidence on the part of appellant going to show that prosecutrix had been intimate with him prior to the 7th of July, the date alleged in the indictment. He also denies in toto any mock marriage or ceremony *Page 357 at the Alamo Hotel. The evidence further discloses that some time after this transaction for which appellant is being prosecuted he was married to another woman.
The first bill of exceptions complains that the court erred in permitting the State to prove by J.M. Skelton, justice of the peace in Dallas County, that on April 6, 1902, witness, as such justice, under a marriage license issued from the county clerk of Dallas County, solemnized the rites of matrimony between defendant Lon Lee and Ella Lee. He also objected to introduction of the marriage license. Appellant insists that said testimony was irrelevant and immaterial and impertinent, and tends to show another offense committed by defendant, and that said evidence was calculated to create a prejudice in the minds of the jury against defendant; and because said marriage between defendant and Ella Lee is not and can not be an issue in this case, or as tending to shed light upon the rape charged in the indictment. The rape alleged to have been committed was on July 7, 1901; and the fact that appellant on the 6th day of April, 1902, married another woman, is a circumstance that might be properly considered by the jury in passing upon the intent, purpose, and motive of appellant at the time that the rape is alleged to have been committed, — that is, it is a circumstance going to show that he had no motive or purpose of ever consummating the marriage at any time. Its probative force is a question for the jury.
Bill number 2 complains that the court erred in forcing appellant to testify that he went to Arkansas for his wife, and to various and sundry matters going to show that he had abducted his wife from the home of her parents, against their wish, will, and consent, and ran away with her, and brought her to Dallas, and married her. These circumstances would not be germane to any issue being tried, and would be introducing, as appellant insists, other offenses or acts that shed no light upon the crime for which he is being prosecuted.
The third bill insists that the court erred in the following: Appellant introduced Jones Paynes, who testified that he knew appellant, and that in the latter part of October or the first of November, and late in the evening, "he saw them going to the National Hotel, in the city of Dallas, situated on Pacific Avenue." That on that night about 9:30 or 10 o'clock he went to said hotel, and to defendant's room, and knocked on the door. Defendant opened the door, and talked with witness, and he saw a woman in the room. Counsel asked said witness how defendant was dressed when he came to the door, and whether or not he was undressed. The State objected to said testimony, and the court sustained the objection. Appellant offered to prove that witness saw a woman in the room, but did not recognize her. We see no connection that this testimony may have with the other facts of this case. It is true, as above stated, the bill of exceptions shows that the witness testified "that he saw them." There is nothing shown by the bill as to whom this relates. Clearly, if appellant went to the National Hotel *Page 358 with prosecutrix, and there are circumstances showing that prosecutrix was in the bed with appellant, it would be proper to permit the testimony to be introduced, but the bill does not show that any error was committed.
Appellant insists that the court erred in failing to peremptorily instruct the jury to return a verdict of not guilty, for that, under the testimony of Rosa Parrish, defendant and Rosa Parrish were lawfully married in accordance with the laws of Texas. As we understand appellant, he insists that the evidence of prosecutrix makes out a lawful marriage under the laws of Texas. Appellant justly insists that there can be marriage in Texas without a license, as provided by the statutes, since the decisions hold that the statute authorizing licenses to marry does not inhibit a common law marriage without license. In Simon v. State, 31 Tex.Crim. Rep., we held that all that can be required in any case involving marriage is proof of a valid marriage, for the violation of which the parties thereto may be punished, whatever be the form of the ceremony; or if there be no ceremony, if the parties agree presently to take each other for husband and wife, and from that time on live professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding on the parties, which would subject them to legal penalties for the disregard of its obligations. An inspection of the evidence in said case discloses that the parties lived together, acknowledging each other as husband and wife, for years after the consummation of the marriage. In Ingersol v. McWillie, 9 Texas Civ. App. 543[9 Tex. Civ. App. 543], Chief Justice Lightfoot, delivering the opinion of the court, after commenting upon the failure to get a license, said: "Of course no such excuse can be shown now for a failure to observe all the rules and regulations prescribed by law and sanctioned by an enlightened people and Christian civilization, but the policy of the law in protecting parties who have innocently been led into such a marriage is the same. From the testimony in this case we think there can be no doubt that Hortense Dix, an inexperienced and confiding girl, just from school, and who had a right to look to A.R. Collins as a protector, was induced to enter with him into the marriage state, under the agreement of present marriage, he giving some business complications as an excuse for not making it public by license and public ceremony. They lived and cohabited as husband and wife, and he introduced her to his friends as his wife, thereby admitting the marriage. She bore him a child, as his wife. While living he did not repudiate the relation." This case cites a great many authorities supporting the validity of common law marriage, where there is no statutory inhibition, and holds that in this State a valid common law marriage can be had. "Mere words, without any intention corresponding to them, will not make a marriage or any other civil contract. But the words are the evidence of such intention, and if once exchanged it must be clearly shown that both parties intended and understood that they were not to have effect." McClurg v. Terry, 21 N.J. Eq. 227 . And this is the effect of all the authorities to which *Page 359 we have had access. G.H. S.A. Ry. Co. v. Cody (Texas Civ. App.), 50 S.W. Rep., 135; Holder v. State, 35 Tex. Crim. 19. It will be seen from an inspection of the authorities that the bare statement of a man to a woman that they take each other for husband and wife, without cohabiting together and recognizing each other as husband and wife, would not make a common law marriage. Marriage is like any other civil contract. The minds of the parties must meet. They must mutually agree to the same thing. There is no authority supporting appellant's contention. However, some of the decisions state that where a marriage is entered into by fraud, and the parties subsequently live together as husband and wife, recognizing that relation to the public for any number of years, it would still be a legal marriage. These decisions, however, are based upon the proposition that either party to a fraud in a contract can waive the fraud by their acts and conduct. In this respect we do not understand there is any difference between a marital contract and any other kind.
Now, reverting to the facts, we hold that, if the testimony of the prosecutrix be true, appellant, through fraud, procured prosecutrix's consent to casual and occasional cohabitation, and she returned to her home; he never lived with her; did not hold her out to the world as his wife, and the evidence conclusively shows that he had no such purpose or intent. Could it be insisted that if appellant had fled from the country after July 7, 1901, after perpetrating upon prosecutrix what she details, he could insist in a court that he was the husband of prosecutrix? Clearly not; since, as stated, if her testimony be true, he had no purpose or intent of ever consummating the marriage or holding prosecutrix out to the world as his wife. The fact that he took her to the Alamo Hotel, which the evidence shows was an assignation house, shows that he had no legitimate intent. We therefore hold that the evidence does not make a common law marriage, as insisted by appellant, and the court did not err in so ruling.
Appellant furthermore insists that the court erred in not instructing the jury to acquit because there was no evidence of rape by force or threats, and that the State's case hinged upon the theory of a fraudulent impersonation by defendant as the husband of Rosa Parrish, and, if not married, the facts disclose no offense, for that since a rape by such means is under the statute applicable alone to the protection of married women. In support of this proposition appellant cites King v. State, 22 Texas Crim. App., 652; Franklin v. State, 34 Tex. Crim. 203; Milton v. State, 23 Texas Crim. App., 204; Melton v. State, 24 Texas Crim. App., 286; Mooney v. State, 29 Texas Crim. App., 258; Payne v. State, 38 Tex.Crim. Rep.. These cases appear to support appellant's contention; but an inspection of the statement of fact in each instance shows that these were prosecutions for rape by fraud upon a woman theretofore married — that is, a woman married to a person other than appellant — and the decisions merely hold in that character of prosecution that the indictment should show the woman *Page 360 was a married woman. Article 633, Penal Code 1895, defines rape as follows: "Rape is the carnal knowledge of a woman without her consent, obtained by force, threats or fraud," etc. Article 636 reads: "The `fraud' must consist in the use of some stratagem by which the woman is induced to believe the offender is her husband." From these articles this court would not be authorized in holding that the woman upon whom fraud is practiced, in order to secure her consent to an act of copulation, must be a married woman in every instance. This would be a strained construction; in fact, would not be a construction at all, but an interpolation upon the statute. This is not warranted in construing any law. Nor can we say that the Legislature intended to permit fraud practiced upon a single woman not to be rape when the same fraud would be rape if practiced upon a married woman. If the fraud is such as to cause the woman, whether legally married or unmarried, to give consent to the act of copulation, believing she is the wife of the man she is copulating with, it is nevertheless rape whether the woman be married or single. We therefore hold that the court did not err in refusing to charge the jury as insisted by appellant.
Appellant insists that the following portion of the court's charge is erroneous, to wit: "In this case the means charged to have been used in committing the alleged rape is fraud. The fraud must consist in the use of some stratagem by which the woman is induced to believe the offender is her husband. It is a presumption of law which can not be rebutted by testimony that no consent was given when the intercourse was had by fraud as above defined. Stratagem means the use of any artifice or trick, and to constitute the fraud essential to render the act of copulation rape the stratagem resorted to must have been intended by the offender to induce, and must have induced, the injured female to believe that the offender was her husband." And again: "If you believe from the evidence beyond a reasonable doubt that in Dallas County, Texas, on or about July 7, 1901, the defendant did represent to Rosa Parrish that he had procured a marriage license to marry her, and that he carried her to the Alamo Hotel, in the city of Dallas, to marry her, and that he sent out for a person authorized to marry them, and had brought into the said hotel the person introduced by the defendant to the said Rosa Parrish as a minister of the gospel, and had said person perform the marriage ceremony and marry him, the defendant, to the said Rosa Parrish, and that by virtue of the said ceremony said Rosa Parrish believed, and was induced thereby to believe, that the defendant was her husband, and that the defendant intended by telling her of said marriage license, and sending for and introducing said person as a minister, and having him perform the marriage ceremony, to believe that he was her husband, and that defendant resorted to said acts for the purpose of having carnal knowledge of the said Rosa Parrish, and that he did by said means have carnal knowledge of her, and that she submitted to his embraces, believing then and there that he was her husband; and you further find that said marriage ceremony was a sham, and *Page 361 said marriage a mock marriage, and that defendant then and there knew it to be a sham and mock marriage; and you further find that defendant was then and there an unmarried male person over the age of 16 years, and that said Rosa Parrish was then and there over the age of 14 years, — then the defendant would be guilty of rape as charged, and you will so find, affixing the penalty therefor." Appellant objected to said charges, because the definition of fraud was not applicable to the facts of the case, and because, if there was no statutory or common law marriage, Rosa Parrish was not a married woman, and the statute has relation only to the protection of married women. These questions have all been reviewed above, and the charge as copied is responsive to what has been heretofore stated. We think the charges are correct. We do not believe that appellant could justly insist that the court should define common law marriage under the laws of this State, because, in our opinion, the evidence does not raise this issue.
Appellant insists in the fifth bill of exceptions that the court erred in admitting the testimony of prosecutrix, the substance of which is detailed above. Without passing seriatum upon the several questions raised, since they have been discussed above, we will merely say that the evidence offered by the State was germane to the issues to be proven, and appellant's exceptions, as contained in said bill, are not well taken.
By the sixth bill it is made to appear that Rosa Parrish was introduced as a witness by the State, and the defendant upon cross-examination proved by her that she had an uncle by marriage by the name of Tom Stringfellow, and that she had a conversation with defendant about Stringfellow. At this point the jury were retired, and the following questions and answers were elicited: "Did you ever have a conversation with defendant concerning certain charges that your uncle, Stringfellow, had made against you and defendant, in which he reported that he had followed you and defendant or knew where you entered in a cornfield; that you had lost your handkerchief there, and that he had found it; and it looked as though you all had laid down in the field; and that he was telling it around the country that you and defendant were criminally intimate; and is it not true that you told defendant about it?" The witness answered, "Yes, sir." "Did you not know that defendant afterwards hunted Stringfellow up and whipped him for it?" To which witness answered, "Yes, sir." "The court: When was that time? Ans. I do not remember the date. The court, to defendant's counsel: I do not think it would be relevant evidence unless you had the man himself here." This testimony would be hearsay, as indicated by the court, and there was no error in excluding the same. The same character of testimony was offered to be proved by Rosa Parrish with reference to another uncle by the name of Frank Parrish. None of this testimony was admissible.
The seventh bill complains of the following: Appellant introduced witness Huggins, and asked: "Are you acquainted with Rosa Parrish, and were you acquainted with her and her general reputation for chastity and virtue prior to July 7, 1901, in the community in which she lived?" *Page 362 He answered, "Yes; and that her reputation in that regard was bad." Upon the cross-examination by the State said witness was asked if he had heard anybody speak or talk about the general reputation of Rosa Parrish for chastity and virtue, and he answered in the affirmative. He was then asked to name the persons with whom he had talked touching such reputation, and the witness named a number of parties, among them Bob Hardcastle. Defendant, upon redirect examination, asked the witness to state what the several parties had said to him touching the general reputation of Rosa Parrish for chastity. On objection by the State the witness was not allowed to answer. Defendant then offered to prove by said witness that Bob Hardcastle, with whom he had talked, had told witness that he (Hardcastle) had repeatedly had carnal intercourse with said Rosa Parrish prior to July 7th. This was hearsay testimony, and the court did not err in excluding it.
Appellant tendered various charges to the court, which were refused, and after a careful review of the same we do not think the court erred in so doing. The record before us is very voluminous, but we have attempted to pass upon every feature raised by appellant.
Because the court allowed the State to force appellant to testify to the mode, manner, and means of securing his wife in Arkansas and bringing her to Texas, which testimony was calculated to prejudice defendant before the jury, the judgment is reversed, and the cause remanded.
Reversed and remanded.