PRENDERGAST, JUDGE.
By a proper count which alone was submitted to the jury, appellant was indicted for rape, alleged to have been committed on Annie Clarkson in Eastland County, Texas, on October 9, 1911, by force, threat and fraud. He was convicted and his penalty fixed at five years confinement in the penitentiary, the lowest prescribed by law.
Annie Clarkson was a girl about fifteen years old at the time this offense is charged to have been committed and lived with her parents. Her parents were tenant farmers living in a small house on a farm in Palo Pinto County. Not a great while before this he had lived for several years in Eastland County, and prior to that in other counties in the State. Appellant was a young man who boarded with her family for a few months just prior to the alleged commission of this offense, and while with the family he courted and became engaged to be married to Annie some three months prior to this offense. He had formerly at some time been married to another woman. Annie and her family knew this. He told Annie, however, that he had been divorced from that wife. A few days before the time of this offense he and Annie, together with her brother and sister just older than she, went in a wagon from her father's in Palo Pinto County to her uncle's, living in Eastland County. Appellant's parents also lived in Eastland County. They reached her uncle's in Eastland County Sunday morning about an hour by sun; it was arranged between Annie and appellant that they would be married in Eastland County at or near her old home where she and her parents had formerly lived. After they reached her uncle's, appellant left them and claimed he went to his father's. When he returned to Annie at her uncle's, he reached her about an hour by sun Monday evening. They then started to return to her parents, the same said four persons, and went by or to the place in Eastland County where she and her parents had formerly lived. Appellant claimed and told her he had procured a license to marry her at Eastland and had arranged to have a preacher to meet them near her old home and to perform the marriage ceremony. When they reached a point near her former home, appellant had the wagon stopped, got out and went back out of sight of the others for some distance and was gone several minutes, — the witnesses differing as to time from ten to thirty minutes. He then returned to the wagon, told Annie to get out and go with him, which she did, leaving her brother and sister. Appellant took her back some hundred yards out of sight of her brother and sister, met a person whom he claimed was a preacher, and who performed the ceremony and pronounced them man and wife. This was at night, — a moonlight night. They then returned to the wagon, told her brother and sister that they had just been married and they drove on a few miles when they stopped and stayed all night. They made up a fire on the ground, the brother slept on the wagon seat at the fire, his unmarried sister in their wagon in which they were traveling, and appellant and Annie went into the field of someone and occupied a wagon that was in that field in which there was some seed cotton. They remained there all night.
The record shows clearly that Annie was an ignorant country girl and her testimony indicates that she was not at all bright or smart. Appellant did not testify. Annie testified and showed that she believed he had procured a license as he told her he had, and that they had been legally and properly married by said person on that night. She testified that while they stayed alone together in the wagon that night he kissed her and fondled her person and had his hands on her, but that he did not that night have sexual intercourse with her; that the next day they continued their journey, reaching her parents, where they announced their marriage, and that they occupied a bed and room at her parents that night and for a short time afterwards, and that that night he did have sexual intercourse with her; that they stayed with her parents only for a short time and then removed elsewhere in Palo Pinto County and lived as husband and wife for several months, she fully believing they were lawfully husband and wife; that she would not have permitted appellant to have had intercourse with her at any time if she had not believed that she was properly married to him. It was shown that appellant had procured no license at Eastland to marry her; that his wife or former wife was still living; that he denied to his brothers that he was married to Annie.
Practically the sole question of any moment in this case is whether or not the evidence was sufficient to show that appellant had sexual intercourse with Annie in the wagon where they remained the first night after he married her in Eastland County. The court charged on circumstantial evidence. We take it that because of the ignorance and inexperience of said witness Annie, she would cross herself in her own testimony; but the jury who saw and heard her and who saw and heard the manner of her examination and cross-examination, were the judges exclusively of her credibility and the weight of her evidence. The whole record shows that appellant, who was a married man, deceived this girl and her whole family, claiming that he had been divorced from his wife, or previous wife. He was not living with her at that time and had not been for several months before. As a matter of fact, he was still married to that previous wife. He courted Annie and became engaged to be married to her and evidently deceived her and had this mock marriage by an assumed preacher for the sole purpose of inducing this girl to have intercourse with him, and he thereby accomplished his purpose. It is apparent from the record that he had failed otherwise to have sexual intercourse with her. While the girl denied that he had sexual intercourse with her that first night, the court having properly charged on circumstantial evidence, it was a question for the jury whether or not, — notwithstanding her denial, — he had sexual intercourse with her that night. The jury was composed of twelve fair and impartial jurors. Doubtless of different ages and business and at different locations in the county. They saw and heard all the witnesses. Appellant was, of course, before them during the whole trial. They reached the conclusion that he had sexual intercourse with this girl that first night. Under the circumstances it would stagger human credulity and would be the reverse of what every man knows to be human nature, if, under the circumstances, he did not have sexual intercourse with her that night. In our opinion the evidence was amply sufficient to justify the jury to believe and find as they did, that he did have sexual intercourse with her that night. Where they stayed that night was clearly shown to be in Eastland County. Ward v. State, 12 Texas Crim. App., 174; Price v. State, 18 Texas Crim. App., 474.
Any fact which can be established by direct, can also be established by circumstantial, evidence. The circumstances proven in this case, together with the knowledge of human nature, is amply sufficient to authorize the jury to find that appellant had sexual intercourse with said Annie Clarkson, notwithstanding she testified he did not on said first night. It would, at least, be no more than one testifying he did not, while another, with equal, or like opportunity, testified he did. She testified he did not. The circumstances unerringly testified, or authorized the jury to find, he did.
Even if we should not be correct in this, then our venue statute as to this offense, is to this effect: Prosecutions can be carried on, first, in the county where committed; second, in any county of the judicial district, and, third, in any county of the judicial district the judge of which resides nearest the county seat of the county in which the offense is committed. The evidence, without doubt and overwhelmingly established appellant had sexual intercourse with said girl in Palo Pinto County, if not, or in addition, to having done so in Eastland County, or without reference to Eastland County. There being nothing to the contrary on this question of venue, it must be determined that Judge Blanton was the judge nearest the county seat of Palo Pinto County, and Eastland County being in his district and adjoining Palo Pinto, the case was properly tried by him in Eastland County. So that in either event the venue was in Eastland County. Mischer v. State, 41 Tex.Crim. Rep..
The court submitted a full, fair and apt charge on every issue in the case. His charge follows and is substantially what was given in Lee v. State, 44 Tex.Crim. Rep., and Wilkerson v. State, 60 Tex.Crim. Rep., which were expressly approved by this court. In addition, the court gave appellant's special charge to the effect: "Unless you find from the evidence that the defendant did not marry Annie Clarkson you will acquit him."
The court in his charge expressly required the jury to believe beyond a reasonable doubt that the appellant had sexual intercourse with said Annie in Eastland County, Texas, and that his private male organ penetrated the private female organ of said Annie, before they could convict him. Hence, the court did not err in refusing to give appellant's special requested charges on these subjects, because the court had clearly embraced them all in his main charge.
The evidence did not show that said Annie was an accomplice. If appellant raped her by fraud as alleged and as required to be affirmatively found by the court before they could convict him, she was not, and could not have been an accomplice; hence, the court did not err in refusing appellant's charge submitting to the jury whether or not she was an accomplice.
It appears that in summoning the special veniremen the sheriff, among others, summoned, and so returned, one J.B. Fenley. In proper time the clerk issued the proper process, requiring the sheriff to serve appellant with a copy of the veniremen summoned and included said Fenley's name. By some mistake the copy that was served on appellant omitted Fenley's name. For this reason appellant made a motion to quash the whole venire. The court overruled this motion and in the explanation to appellant's bill stated on July 8, 1912, the case was set down for trial for July 19, 1912, at 8:30 o'clock a.m.; that the special venire was served on appellant on July 17, 1912, but that it omitted said Fenley's name from the copy so served; that when the case was called, at the time set, appellant, the district attorney, witnesses and veniremen were all present, but appellant's counsel was absent; that after waiting a reasonable time for him, the court proceeded to empanel the venire as to matters touching their qualification. At this juncture appellant's counsel appeared and verbally moved the court to quash the venire for the reason that said Fenley's name had been left off of the copy served on appellant; that the court thereupon excused said Fenley and did not require defendant to pass upon him; that a jury was secured before defendant exhausted all of his challenges. This bill shows no error by the court. Judge White, in his Annotated C.C.P., section 721, says: "Mere discrepancies in some of the names as stated in the copy and the original will be immaterial where it appears that the parties named did not serve on the trial, and defendant did not exhaust his peremptory challenges. Bowen v. State, 3 Texas Crim. App., 617. If there is a variance between the name set out in the copy and the original, the proper practice is to stand such venireman aside. Mitchell v. State, 36 Tex.Crim. Rep.; Hudson v. State, 28 Texas Crim. App., 323; Thompson v. State, 19 Texas Crim. App., 593; Swofford v. State, 3 Texas Crim. App., 76; Bowen v. State, 3 Texas Crim. App., 617." The court in this instance pursued the proper practice; appellant was not required to pass on this juror, he got a complete jury out of the panel that was served on him without exhausting his challenges.
As stated above, the charge of the court followed substantially if not literally the charges in said Lee and Wilkerson cases, supra, in the definition of fraud under our rape statute, and required the jury to believe before they could convict him that he had obtained sexual intercourse with this girl by the practice and perpetration of said fraud. So that the criticism of appellant of the court's charge not requiring the jury to believe all the necessary requisites, which were held sufficient in said cases, is also without merit.
Appellant has several complaints in his motion for new trial about the introduction and exclusion of testimony, but there is no bill on the subject. Hence, such complaints can not be reviewed by this court.
We have carefully considered all of appellant's complaints and in our opinion none of them show any reversible error. Wherefore, this case will be affirmed.
PRENDERGAST, JUDGE.
Appellant presents and discusses several propositions in his motion for rehearing.
There are but two questions which we deem necessary to further discuss. The first is the refusal of the court below to submit his special charge on the question of venue which we will hereinafter state. The second is the sufficiency of the evidence to authorize the conviction.
In the original opinion we briefly stated the question of venue in rape cases based on article 254, Code of Criminal Procedure, which was an Act of the Legislature at the first special session in 1897, page 16, and we cited in that connection the case of Mischer v. State, 41 Tex.Crim. Rep.. This question in the original opinion was not discussed. It was unnecessary to the decision of this case, and, being so, we now withdraw all that part of the original opinion and do not discuss or decide that point on said statute.
Recurring to appellant's question first above stated. His requested charge, which was refused, was: "The indictment in this case alleges that the defendant raped the prosecutrix, Annie Clarkson, in Eastland County, and before the defendant can be legally convicted in this case, it must be shown that the defendant did rape the said prosecutrix, Annie Clarkson, and that the said offense occurred in Eastland County, and it is not sufficient to prove a rape in Palo Pinto County." Appellant cites that line of decisions which correctly hold that a defendant is entitled to a distinct and affirmative and not merely an implied or negative presentation of his special defense in order to prevent the jury from ignoring it and conduct them to a proper verdict, if they find his evidence of such distinct and affirmative defense is true or raised. This is a correct enunciation of the law. What is a distinct and affirmative special defense is altogether a different question. The question of venue is in every case and the burden is upon the State to show the venue where laid. It has always been held by the Supreme Court and this court that it is not essential that venue should be proved beyond a reasonable doubt; that the doctrine of reasonable doubt does not apply to the issue of venue. Barrara v. State, 42 Tex. 260; McReynolds v. State, 4 Texas Crim. App., 327; Deggs v. State, 7 Texas Crim. App., 359; Achterberg v. State, 8 Texas Crim. App., 463; McGill v. State, 25 Texas Crim. App., 499; Cox v. State, 28 Texas Crim. App., 92; Abrigo v. State, 29 Texas Crim. App., 143.
In this case the question of venue was not a distinct and affirmative defense. But even if it was, it was clearly submitted by the court to the jury and they were required to believe beyond a reasonable doubt that the offense was committed in Eastland County before they could convict. It is elementary that the whole of a charge must be taken together when complaint is made of any portion thereof. It is also elementary that when a question has once been submitted properly by the charge of the court it is not only unnecessary, but improper to give a special charge further on the subject. It is needless to cite the authorities on these points.
Now let's see what the charge of the court on this subject was. In stating the case the court said: "Bird Melton stands charged by indictment with the offense of rape alleged to have been committed in the County of Eastland, and State of Texas, on or about the 9th day of October, A.D. 1911," then tells them that there being two counts he withdraws the first and submits to them only the second, and that in that second count, "it is charged that the defendant, Bird Melton, on or about the 9th day of October, 1911, in the County of Eastland and State of Texas did then and there," etc. The court then correctly tells the jury that the means charged to have been used in committing the rape is fraud, and defines to them what is meant by fraud, applicable to the statute and this offense.
Then in another separate paragraph he tells the jury that before rape by fraud is complete it is incumbent upon the State to establish by the evidence beyond a reasonable doubt the fact of fraud and that by such fraud the defendant obtained carnal knowledge of the alleged female and that such copulation was complete, — that is, "that the defendant penetrated the private organ of the alleged injured female with his private male organ."
Then in a separate paragraph submitting the case to the jury for a finding, he tells them: "Now, if you believe from the evidence in this case beyond a reasonable doubt that in Eastland County, Texas, on or about the 9th day of October, A.D. 1911, the defendant did," etc. (telling them fully all of the things that were necessary for them to so believe before they could convict appellant), "and that he did, by said means, have carnal knowledge of her," etc., that he would be guilty of rape as charged and to render their verdict accordingly, telling them what the penalty for the offense was.
Then follows another separate and complete paragraph, "unless you should so believe and find from the evidence beyond a reasonable doubt, you will acquit the defendant." Then follows a complete charge on circumstantial evidence. In addition, he charges the burden is upon the State to establish appellant's guilt by legal evidence beyond a reasonable doubt and follows that with a separate paragraph that appellant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt and if they have a reasonable doubt as to his guilt to acquit him. Then another paragraph follows telling the jury they are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given to their testimony, but that they were bound to receive the law from the court as given in the charge and be governed thereby.
The count in the indictment submitted by the court specifically alleges that Bird Melton on the date named, October 9, 1911, "in the County of Eastland and State of Texas," did then and there, etc.
The verdict of the jury is also significant. It is, after its date: "We, the jury in the case of the State of Texas v. Bird Melton, find the defendant guilty of rape as charged in the second count of the indictment, and assess his punishment at five years in the State penitentiary."
We are clearly of the opinion that the jury could not have found the appellant guilty under the indictment, charge of the court and verdict hereinabove stated without specifically finding that the offense was committed in Eastland County and nowhere else; and that they could not have been misled and were not misled, and found appellant guilty because the offense was committed, if so, in Palo Pinto County and not in Eastland County. The court did not err in refusing appellant's said special charge.
On the other question of the sufficiency of the evidence to sustain the verdict, we have again and again carefully studied the evidence in this case and are clearly of the opinion that the evidence was sufficient to sustain the verdict.
We again state that it is elementary and can not be questioned that any fact can be established by circumstantial evidence as fully and completely as by positive or direct evidence. It is not only universally true that the jury are the exclusive judges of the facts and the credibility of the witnesses, but it is statutory: "The jury are the exclusive judges of the facts in every criminal cause. . . ." C.C.P., art. 734.
It is also universal that: "The jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are the most worthy of credit, and to give credit accordingly.
"That the jury are the judges of the credibility of the witnesses, and of the weight to be attached to the testimony of each and all of them; and the jury are not bound to take the testimony of any witness as absolutely true, and they should not do so, if they are satisfied from all the facts and circumstances proved on the trial, that such witness is mistaken in the matters testified to by him, or that, for any other reason, his testimony is untrue or unreliable.
"The jury are instructed, that they are the judges of the credit that ought to be given to the testimony of the different witnesses, and they are not bound to believe anything to be a fact because a witness has stated it to be so — provided the jury believe, from all the evidence, that such witness is mistaken or has knowingly testified falsely." Sackett on Instructions to Juries, p. 29.
Jurors are not mere figureheads. They should not, must not and do not give credence to every witness who testifies when there is a conflict in the evidence. If they did where one or more witnesses testified to a given state of facts, and another or others testified the reverse, they could never reach a verdict. They have the right, and it is their privilege if not their duty to believe a part of the testimony of a witness and not believe another part. They could not properly discharge their functions and ever find a verdict, unless that were true.
The jury must not receive nor consider evidence other than what is given to them on the trial of the case, and if either or any has knowledge of any fact pertinent in the case they can not consider that, unless testified to by them on the trial. There is no intimation in this record, or otherwise, that these jurors or any of them had any knowledge of any fact in connection with this case or that they received testimony other than that which was given upon the trial. Yet, it is their duty, as stated above, not to sit as mere dummies or numskulls but that they are "to use their general knowledge and experience such as any man may bring to the subject, and may and should take into account all the presumptions, which, according to the ordinary course of events, or according to the ordinary experience of mankind arises out of the facts proved, and conclusions may be reached that lie quite beyond the mere letter of the evidence." Their duty and privilege in this regard is most aptly expressed in 38 Cyc., p. 1838, as follows: "To the general rule that facts in issue must be found by the jury on the evidence adduced at the trial and on the evidence alone, there is a distinct and well-defined exception, namely, that the jury have the right in making up their verdict to use their general knowledge and experience such as any man may bring to the subject, and may and should take into account all the presumptions which, according to the ordinary course of events or according to the ordinary experience of mankind, arise out of the facts proved, and conclusions may be reached that lie quite beyond the mere letter of the evidence. While a jury are not to use their own judgment in making up a verdict upon a subject calling for particular knowledge or experience not within the general knowledge they have in common with the rest of mankind; and while they can not act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently, they must, judge of the weight and force of that evidence by their own general knowledge of the subject of inquiry." This statement of the law is not only backed up by unquestioned reason, but by numerous authorities as cited in Cyc. And as further stated in Patterson v. Boston, 20 Pick. (Mass.), 159, stated in note to Cyc.: "Juries would be very little fit for the high and responsible office to which they are called if they might not avail themselves of these powers of their minds when they are most necessary to the performance of their duties."
Now, then, let us see what the evidence in this case is on this point. Briefly, it is that the prosecuting witness, Annie Clarkson, did testify that appellant did not have sexual intercourse with her the first night in Eastland County where they stayed, after the false marriage. She was before the jury as well as the appellant was. The jury had the right, as Mr. Sackett says above, to determine from her appearance on the stand, her manner of testifying, her apparent candor and fairness, her intelligence or lack of intelligence, and from all the other surrounding circumstances appearing on the trial, whether she was worthy of credit when she so testified. They concluded from all this that her testimony on this point was not true, or was a mistake or was brought about by some or all of the facts they could look to, as to whether she was testifying the truth on this point or not. If they had believed her testimony on this point unquestionably they would have found the appellant not guilty. But that was not all the testimony nor all the surrounding facts shown to the jury. Some of them briefly are: That the appellant was a young man; he had been married but separated from his then living wife. She, Annie Clarkson, testified not only on direct but on cross-examination that before her pretended false marriage to him, "I told the jury this morning that I refused to have intercourse with the defendant before he pretended to marry me and I refused to have intercourse with him." She was a young, ignorant country girl, not then fifteen years of age, lacking more than four months of being fifteen years of age; he had been courting her and engaged to her for about three or four months prior to that. Doubtless he had used all the wiles known to him to induce her theretofore to have sexual intercourse with him, but she stood firm and told him nay. Then what does he do? He knew, not only in law but in fact, that he could not legally marry this girl. In order to induce her to go through this false pretended marriage he lied to her, telling her that he had a divorce from his then living wife. He also falsely told her to inveigle her into that pretended marriage that he had a legal license from the proper authorities of Eastland County to marry her. He also falsely told her that the person who then and there pretended to perform the marriage ceremony was a minister of the gospel and authorized to marry them. He then took her that night, after all these false representations to her, and his pretended marriage to her, and his failure theretofore to induce her to let him have sexual intercourse with her, off into a wagon partly loaded with seed cotton, where he remained with her the whole night, with no other to see or hear or molest him, she testifying, "The first night I spent with my husband he embraced me and kissed me during the night. He did not fondle me. He was familiar with my person and fondled my person. He placed his hand on my person during the night." We take it that no reasonable juror, nor judge, could for one moment doubt what this was and what it meant. We are not dealing with persons who properly and legally enter into the holy bonds of wedlock and who, for the first night, occupy the bridal bed. This is not that kind of case and this is not that kind of man we are dealing with. But who is the man we are dealing with in this case? It is a man of experience, seeking by all the wiles to induce this young girl to have sexual intercourse with him without any even pretended marriage, but she denied him. Then to accomplish his purpose and to gratify his aroused sexual passion he induced her to marry him and occupy this wagon with him all that night, for what purpose and with what intent? To occupy the bridal bed in the holy bonds of wedlock? No, but for the sole purpose and with the sole intent of accomplishing his desire and having sexual intercourse with this child. In our opinion no reasonable juror or judge could for one moment doubt it. So what do we have? We have a young, ignorant girl, doubtless trying to protect the appellant from conviction testifying that he did not have intercourse with her that night in Eastland County, but all the other facts and circumstances point unerringly and show without the shadow of a doubt that he did, that night, have sexual intercourse with her. His purpose was not to live in holy wedlock with her. He could not lawfully do so, and he knew it. His whole object and purpose was to have sexual intercourse with her. He knew he could not live in lawful wedlock with her. He had no such purpose and intention.
But we are met with a dissenting opinion of our eminent Presiding Judge in this case wherein he contends that the evidence in this case, in effect, shows without question that this false marriage was in fact and in law a common law legal marriage and that the offense committed by the appellant was not rape but that it was bigamy. And he again reiterates briefly his dissenting opinion in the cases of Lee v. State, 44 Tex. Crim. 354, and Wilkerson v. State, 60 Tex.Crim. Rep.. He also cites and calls upon the decision of our Supreme Court in an opinion written by Chief Justice Brown in Grigsby v. Reib, 153 S.W. Rep., 1124, and claims that that opinion sustains him in his position. We have carefully read that decision and in our opinion it holds the very reverse of his contention and instead of sustaining him refutes his contention and argument. We will state that opinion as stated by Judge Brown: Mrs. Grigsby instituted suit against the children and heirs of G.M.D. Grigsby, deceased. (It will be borne in mind that there was no legal impediment whatever to the marriage of these persons, because neither of them were then married to any other person.) This Mrs. Grigsby kept what she termed a rooming house, but in fact an assignation house, in Dallas, in which girls roomed and received their visitors, and in which men and women resorted for illicit purposes. Judge Brown says: "Adopting the statements of plaintiff and her witness as true, the facts were, in substance, that Grigsby's wife having died, he visited plaintiff in her place, and they agreed to be husband and wife, and then began sexual intercourse, he coming to that house at different times and frequently. They occupied the same room and the same bed, and indulged their sexual desires. Grigsby called plaintiff his wife, and introduced her to some persons as such. . . . She did not assume the name of Grigsby until after his death. Grigsby died at Jefferson in 1906, and defendants, under lawful claim, took possession of his property, at least of that part in suit which plaintiff claims to have been acquired by Grigsby after her alleged marriage to him, wherefore she claims one-half of it as community property." Judge Brown then states that it is unnecessary to give the facts relied upon by the defendant, because the law which must control can be more clearly stated under this plain condensed statement of plaintiff's claim.
The opinion then takes up and discusses the common law and, of course, correctly holds, which nobody denies, that a common law marriage is a valid marriage in this State. He then, among other decisions, takes up the opinion of Judge Williams in Simmons v. Simmons, 39 S.W. Rep., 639, while Judge Williams was on the Court of Civil Appeals of the First District, and shows that Judge Williams' statement of the law, wherein he said: "To constitute such a marriage it requires only the agreement of the man and woman to become then and thenceforth husband and wife. When this takes place the marriage is complete," and shows this is not, and was not, the law. This opinion in the Simmons case, and an opinion by Judge Neill in Cuneo v. De Cuneo, 59 S.W. Rep., 284, which follows it on this point, was cited by Judge Davidson in his dissenting opinion in Lee v. State, supra, to sustain him in his then contention as now. But Judge Brown in this case, Grigsby v. Reib, supra, expressly holds that the decision of Judge Williams in the Simmons case was not the law and, of course, that of Cuneo, supra, following it, had not been, and is not the law. And Judge Brown in concluding his opinion says that the court in the Grigsby case correctly charged the law not as claimed and laid down in the Simmons case, and also held that the jury had found correctly on the facts, which finding was against the claim of Mrs. Grigsby. We are in full accord with the decision in the Grigsby v. Reib case, supra, and our opinion in this case is in no way in conflict therewith, but is in full accord with it.
Judge Davidson in this case says that appellant was not guilty of rape, but was guilty, if anything, of bigamy. The rape charged in this case was alleged to have occurred, and the proof all shows, that it did occur in Eastland County on the night of the marriage and not at another time. The rape was then a complete offense. Bigamy under the facts of this case, could not have then occurred, because as held in the Grigsby case, supra, and all of the decisions on the subject, it took not only the assent of the parties to the marriage, but it also took a continuous living together thereafter as husband and wife to constitute a marriage at common law, and thereby complete the offense of bigamy, so that appellant could have been prosecuted or convicted therefor. In other words, the rape was complete the night of the marriage and the act of sexual intercourse that night. Bigamy could not have been committed, or appellant guilty of bigamy, until and unless he lived with the girl for a considerable length of time thereafter with all the other concurrent and continuous acts necessary to show marriage. It is true, the girl testified that they lived together some nine months thereafter, she supposing that they were husband and wife. But in March subsequently, some four months only after the pretended false marriage, appellant denied to his brothers expressly that he had married the girl. That was, so far as the record shows, the first time the matter came in question, and when it did, he immediately stated he had not married the girl.
But suppose it be conceded that the appellant by this transaction of pretended marriage alone or that and the subsequent living together for a few months with the girl, so as to indulge his sexual passion with her, thereby committed the offense of bigamy, then what is the law on the subject? It is clearly stated by Mr. Bishop in his 1 New Criminal Law, section 791, as follows: "One answerable for a criminal transaction may be holden for any crime, of whatever nature, which can be legally carved out of his entire offending. He is not to elect, but the prosecuting power is. If the evidence shows him to be guilty of a higher offense than he stands indicted for, or of a lower, or of one differing in nature, whether under a statute or at the common law, he can not be heard to complain, — the question being whether it shows him to be guilty of the one charged." That doctrine has been aptly and repeatedly announced and held by this court. It is tersely stated in Quitsow v. State, 1 Texas Crim. App., 47: "The prosecutor had a right to carve as large an offense out of this transaction as he could, yet must cut only once." Grisham v. State, 19 Texas Crim. App., 504; Sinco v. State, 9 Texas Crim. App., 338; Wright v. State, 17 Texas Crim. App., 152; Jackson v. State, 43 Tex. 421; Whitford v. State, 24 Texas Crim. App., 489; Mercer v. State, 17 Texas Crim. App., 452.
Therefore, the appellant having been guilty of rape, the State had the right to choose which offense it would prosecute for, whether for rape or bigamy, even if he was guilty of bigamy. He had no right to choose for which offense he should be prosecuted. The State alone had that right and having carved and convicted him of one, he can not complain that the State ought to have carved and convicted him for the other.
We did not hold in the original opinion in this case that the presumption of innocence did not prevail, nor did we hold that the presumption of guilt prevailed. By no strained construction, or otherwise, of the language in the original opinion, can we be made to say any such thing. The presumption of innocence is a legal presumption, but proof can be offered to show guilt, notwithstanding this presumption, and when that is done, and a jury on sufficient evidence, found him guilty, this presumption of innocence was done away with and no longer prevailed. And the evidence with all the facts and surrounding circumstances, proved in this trial, clearly and fully authorized the jury to believe, as it did, and found, that he had sexual intercourse with this girl the first night he slept with her in Eastland County, with all the other facts necessary to show his guilt. He is shown to be guilty notwithstanding the girl testified he did not have sexual intercourse with her that first night. The jury was in no way bound to believe her testimony on that point, but from all the other facts and circumstances, could, as they did, believe and find he did have sexual intercourse with her that first night.
We expressly approve and adhere to the decisions in Lee v. State, supra, and Wilkinson v. State, supra. They correctly announce and hold the law on the question of rape by the character of fraud therein and herein shown.
The motion is overruled.
Overruled.