I have been unable to agree with my brethren in affirming this case. I deem it unnecessary to go into anything like a detailed statement of the evidence. Prosecutrix testified that she and appellant had known each other for a couple of years, and had been engaged for some months, and were finally married in Eastland County while in that county on a visit to her relatives. She further testified that she was aware of the fact that appellant had been previously married, but had been informed by him and believed it to be true that he had obtained a divorce from his wife some months prior to her marriage with him. It would seem, however, from the testimony developed on the trial appellant had not been divorced from his former wife, but that she was still living. Believing that there was no legal obstacle to their marriage in Eastland County prosecutrix married appellant. After the marriage they lived together for about nine months, assuming all the duties and obligations of husband and wife, so holding themselves out to the world. The day following their marriage they returned to her father's residence in Palo Pinto County and remained for some time and until appellant secured a home of his own, *Page 137 to which they then moved. This relation continued between them publicly and everywhere they were until this prosecution began. Something like a year or nearly so after the marriage appellant was indicted and afterwards convicted for having committed rape on the prosecutrix by fraud, that is, inducing her to believe that they were married, thereby obtaining sexual favors. The marriage as detailed by the prosecutrix occurred as follows: A day or two before their marriage they left her father's residence, that is, she and appellant, accompanied by her brother and sister, going to Eastland County, where they visited relatives of the prosecutrix. The family knew of her engagement to be married to the defendant about four months before the ceremony occurred. Quoting her language: "This ceremony took place in Eastland County, Texas. After this ceremony we went right straight on the way home. We went back to the wagon. Q. Did you and the defendant, either of you, tell your brother and sister what had taken place? A. Yes, sir. We went that night up about four or five miles from Ranger and camped. I slept that night with the defendant, Bird Melton. I did not have sexual intercourse with him that night. The next morning we got in the wagon and started on home and went on home that night, or the next day, to my mother's and father's house. When we got home my mother and father were present. Me and the defendant informed my father and mother of the ceremony that had taken place. We told them about it — my sister did, just as soon as we got there. I continued to live with him there at my father's and mother's as husband and wife. I lived with him about nine months. . . . We lived as husband and wife nine months. We never lived at my father's and mother's but a week after we were married and moved out in the country. I would not have submitted to his sexual embrace and have had sexual intercourse with him unless I had thought I was married to him. I would not have submitted to him under any circumstances or conditions unless I thought I was his wife. If I had known I was not married I would not have had intercourse with him. We remained together as husband and wife about nine months." Speaking of the night they were married, she says: "We did not sleep in our own wagon. We didn't have intercourse that night. He didn't try to have intercourse with me that night. We didn't have intercourse until we went over there and got over there to Graford." This was in Palo Pinto County. She further testified she knew he had been married, but had been informed and believed he had obtained a divorce from his wife, and, therefore, she married him. My brethren call this "a mock marriage," and the intercourse with prosecutrix they term "rape by fraud." I am persuaded that under the law and the decisions, this could by no sort of legal construction be rape. Appellant may have been guilty of bigamy but not rape. If appellant had not been previously married at the time and had a then living wife at the time he married prosecutrix in this case, under all the decisions, as I understand them, the marriage with prosecutrix would have been legal, unless we find the exception in Lee v. State, 44 Tex. Crim. 354, *Page 138 and Wilkerson v. State, 60 Tex.Crim. Rep.. If the former marriage had not existed I do not believe it would have been questionable under the facts as detailed in this record that the marriage to prosecutrix would have been held a legal marriage. Such are all the decisions except those above enumerated, and even under the Lee case this marriage would be valid but for the former marriage. For a full discussion of this matter see the recent opinion by Chief Justice Brown in the case of Grigsby v. Reib, unpublished. Judge Brown, writing for the Supreme Court, in a remarkably able and exhaustive opinion, reviewed the whole question, and his conclusion, it occurs to me, is unanswerable. Under that opinion, but for appellant's previous marriage, the marriage to prosecutrix here would have been unquestionably legal. The parties went through a ceremony as testified by prosecutrix in which they agreed to live as husband and wife. This was about 7 or 8 o'clock in the evening. That night they slept together, and they continued sleeping together, cohabiting together, holding themselves as and assuming all the relations of husband and wife from that time until this prosecution was instituted. This was done in the most public manner possible. They were recognized and so treated among and by relatives and friends. In cases of bigamy it has always been held in this State what is known as a common law marriage can be shown and is valid. Burks v. State, 50 Tex.Crim. Rep.; Hearne v. State, 50 Tex.Crim. Rep.; Ingersol v. McWillie, 9 Texas Civ. App. 543[9 Tex. Civ. App. 543], 30 S.W. Rep., 56; Waldrop v. State, 41 Tex.Crim. Rep.; Simon v. State,31 Tex. Crim. 186; Knight v. State, 55 Tex.Crim. Rep.; Dumas v. State, 14 Texas Crim. App., 464. See Branch's Crim. Law, sec. 137, for general collation of authorities. In Burks v. State, supra, it was held that the first marriage being proved, the fact that defendant married again while the first wife was living and the parties lived together as husband and wife until she discovered the fraud, evidence is sufficient though no license was issued for the second marriage. In the same opinion it was held, "it is not a prerequisite to the validity of a marriage that a license issue." Mr. Branch aptly states one of the rules this way: "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 a disregard of its obligations," citing some of the cases already cited. Judge Brown in Grigsby v. Reib, supra, not only recognizes the above propositions but accentuates them in a manner that in the judgment of the writer is not debatable but unanswerable. Reiterating my statement that but for the fact that appellant had been previously married, this marriage would not have been questioned and ought not to be questioned in any court. That being true, appellant was not *Page 139 guilty of rape by fraud or of any sort of rape. He was guilty of bigamy. The cases of Lee v. State, and Wilkerson v. State, supra, and the majority opinion in this case are out of harmony with all the decisions in Texas, and with nearly every decision that has been written in the jurisprudence of this country. For a full review of these matters see Judge Brown's able opinion. Marriage is not a theory but a condition, while it is resultant to some extent from contract agreement, yet it is a status resultant from certain facts — living together as husband and wife, etc.
I feel impelled to say this much in regard to one phase of the case, inasmuch as my brethren hold this "a mock marriage," in view of the testimony above detailed, which, in my judgment, makes it a legal marriage but for the prior marriage, and but for the prior marriage this would have been a legal one. This marriage is bigamous.
There is another question with which I can not agree with my brethren. I do not care to repeat the testimony that has already been mentioned. If the State succeeded in proving anything in this case, it was that defendant did not have intercourse with the prosecutrix in Eastland County. They spent the first night after their marriage in that county. The State proved beyond any question that the next night they were in Palo Pinto County, and that in that county he did have sexual intercourse with the prosecutrix. The court below submitted the case on the theory, and the indictment so charged, that the intercourse occurred in Eastland County. This matter is properly brought before the court both on the testimony and the exceptions to the charge. My brethren hold that although the State does not prove an act of intercourse in Eastland County, and although prosecutrix testifies positively it did not occur in Eastland County, and that appellant did not have intercourse with her the first night, yet they say the evidence is sufficient to justify the jury in believing they had intercourse in the face of such failure to prove it and a flat denial by positive testimony that it occurred. In other words, they hold the jury was correct in not only disbelieving the State's positive testimony, but they were justified in presuming in the face of a flat denial of the fact that intercourse did occur. The theory upon which my brethren affirm is that the idea that defendant slept with the girl that night and did not have intercourse was preposterous and not in accordance with human experience. The law does not authorize a conviction for rape because it is human experience that men have intercourse with women. The law in rape cases requires proof of the fact that intercourse occurred, that is, that there was penetration of the woman, and this sufficiently strong to overcome presumption of innocence and reasonable doubt, but here we have a conviction not only without testimony, but in fact of positive evidence by the prosecutrix that appellant did not have intercourse with her. The presumption of innocence should obtain and not the presumption of guilt. In the face of the testimony my brethren affirm this case upon the theory, and can be justified only upon the theory, *Page 140 that the defendant is presumed guilty, and not only so, but in the face of the facts which positively show that intercourse did not occur, and this theory is made conclusive of guilt by some idea of human experience that newly married people always have intercourse on their wedding night. I am persuaded that the prosecutrix had more intimate knowledge of the question and the fact as to whether appellant had intercourse with her or not than did the jury or does the majority of this court. My brethren and the jury were not present and know nothing of the circumstances except as shown by this record supplemented by what they claim to be their knowledge of experience of human nature under such circumstances. I can not go with my brethren in holding that we will presume the defendant guilty on the absence of facts, much less by presuming his guilt only from human experience in the face of facts directly to the contrary and by the only party testifying who knew the facts as they occurred, towit: the prosecutrix. The citizenship of Texas do not hold their lives and liberty on the doctrine laid down by the majority in this case, at least, it was never intended so by the framers of the Constitution and the laws enacted by the Legislature, and it has never been before so declared or intimated. The State must not only introduce evidence to prove guilt, but that evidence must produce proof sufficiently cogent, truthful and strong to overcome the presumption of innocence and reasonable doubt. The reasonable doubt is not only disregarded and overruled and destroyed in this case, but in its place is substituted the presumption of guilt, and this guilt, too, denied by all the facts. I do not care to follow this any further, except to add that the statute has not declared that sleeping with a woman is rape. There must be "penetration" else there is no rape and this must be proved.
There is another proposition in the case that I am not prepared now to discuss as intelligently as I should like to do and may do at some other time. The evidence raises the question as to whether Eastland County had jurisdiction of appellant by reason of the acts of intercourse in Palo Pinto County, it being an adjoining county to Eastland. It is shown that Palo Pinto County is in a different judicial district from that in which is situated Eastland County, and the District Courts of the two districts are presided over by different judges. The point is made and urged that inasmuch as the indictment alleges jurisdiction in Eastland County, that the act of intercourse had in Palo Pinto County could not be tried in Eastland County; that if the statute be construed so as to give Eastland County jurisdiction of the act of intercourse in Palo Pinto County, it must be alleged in the indictment that the act of intercourse occurred in Palo Pinto County. The Mischer case, 41 Tex. Crim. 212, seems to bear that construction. The indictment in that case was found in Guadalupe County, but alleged the rape was committed in Colorado County, which the facts sustained. As the matter is now presented to my mind, without time to investigate further, I am inclined to believe the position taken by counsel for appellant *Page 141 is the correct legal one. As my brethren are affirming the case I desire to make the above statement so that at some convenient time I shall give the matter close investigation and careful thought.
For the reasons indicated I most earnestly dissent.
ON REHEARING. June 18, 1913.