Lee v. State

I desire to give some reasons why I can not concur with my brethren in some of the conclusions set forth in their opinion.

I concur in the reversal, for the reasons assigned in sustaining bill of exceptions number 2. I dissent from refusal to reverse the judgment on the matter set up in bill of exceptions number 1. The same reasons apply for admitting the testimony in this bill as to that admitted in bill number 2. I am unable to perceive the relevancy of appellant's subsequent marriage to Ella Lee to the rape of Rosa Parrish. The court says: "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." How the issuance of the license on the 6th of April, 1902, to one woman, could tend to show motive for the prior rape upon another woman, is not apparent. If the doctrine announced be correct, then every marriage subsequent to a rape becomes legitimate evidence upon the trial of the previous rape, if the alleged rapist is party to such marriage.

The court instructed the jury, in substance, that the testimony of Rosa Parrish, if true, would constitute a rape by fraud. Appellant, on the contrary, insisted that, if her testimony was true or believed by the jury, he would be entitled to an acquittal upon two grounds: First, it was a marriage; and second, the facts could not constitute a rape by fraud; to which may be added, third, that it could in no event be rape, because she consented to the act of carnal intercourse. In order to bring this question clearly in review, it is necessary to make a substantial statement of the facts bearing on the question of marriage. Some of the most material facts bearing on the question of marriage are omitted in the opinion.

Rosa Parrish testified that appellant told her that he was 21 or 22 years of age — something a year older than herself; that on the morning of July 7, 1901, he came to her mother's residence (who was a widow), and requested her to attend a campmeeting; that after they had gotten in the buggy and started for the supposed campground appellant urged her to go with him to Dallas, a distance of some eighteen miles, and marry him; that she agreed to this proposition. After reaching Dallas appellant registered their names at the Alamo Hotel, but she was not advised as to the names placed on the register, as she did not look to see. "Defendant said we would go to the hotel and be married there; get a minister and witnesses, and be married there. I think we must have stayed there three or four hours. While we were there he took me to a room, and went out and got a minister and witnesses, and we were married. He introduced the minister to me by the name of Brown. He brought in two witnesses. He introduced them, but I don't remember their names. They were a man and a woman. He said it was the man and his wife of that hotel. I don't remember their names. I had been in that room just a few minutes when defendant went down and got the minister. Defendant took me to the room, went out, and was gone some little time, and he came back with the minister and the two witnesses, and we were married there, and the minister wrote out the certificate and gave it to him, and the witnesses signed their names. The minister wrote out the certificate on the dresser — there was no table in the room. He did that in the same room we were in. He gave the certificate to Lon Lee. The minister had a marriage license to authorize him to perform that ceremony. He kept the license. I did not read it, and don't know what was in it. I don't know whether this man was a minister or not. That occurred on Sunday. Lon Lee claimed that he got the license at Cleburne. He paid the minister a fee, but I don't know how much. He paid him a bill. That ceremony was performed in Dallas County, Texas. After the ceremony was performed, the minister and witnesses went out of the room. I don't know where they went. Defendant and I stayed in that room three or four hours after the minister left. We stayed there some time, and then went home. I had carnal intercourse with defendant in that room, in the bed. I believed I was his wife at the time I let him have carnal intercourse with me." Later in the evening they returned in the direction of their home, which was near Coppell, in Dallas County. En route defendant's pistol was discharged, wounding prosecutrix, which compelled them to stop overnight at Dr. Butler's. She further says: "I had an understanding with defendant that our marriage was to be secret. We agreed to that as we came to Dallas. Defendant said he was unable to take a wife then, because he was considerably in debt, and then he said he was going away, and he wanted me to marry him before he went away. I agreed to that. At the time of this ceremony Lon Lee was a single man and I was single. After that marriage defendant said we would have to keep it secret until he was able to provide for me. He afterwards told me that the man who performed the ceremony was no minister. I do not remember exactly when it was he told me that, but think it was in November of last year (1901). I kept insisting that defendant tell that we were married, and he always made excuses for not telling it, and then showed me a letter he received from this man that married us, and he said he was no minister, and the marriage was all a fraud. Defendant has that letter, or had it at the time I saw it. I read the letter. Defendant said he had received it from the man that married us. Defendant said he thought it was all right, and we were married, and that we would marry again. He made that statement to me some time in November, as well as I remember." Shortly afterwards appellant went to San Antonio, and from there wrote prosecutrix quite a number of letters, professing the greatest love and fealty on his part toward the witness. One of them is as follows: "My Dearest Girl: On surprise of myself as well as you, I leave for Dallas to-day to accept a position. I didn't know that I was going until last night, as I received a telephone message to come at once. Papa will go to Childress in my stead, but after the building is completed, then I will take charge of the business, and we will go to housekeeping. Pet, don't become worried, trust in me, and I shall be true and loyal to you." It seems there was an understanding between appellant and his father that the father would secure a building at Childress, where they were to engage in the saloon business. Appellant was to take charge of the business, and this is the matter referred to in this letter. While appellant was in Dallas, at his solicitation prosecutrix several times visited and stayed with him at different hotels, where they registered as man and wife, not, however, under the name of Lon Lee and wife, but under some other name. At the hotel conducted by Mrs. Rath appellant registered himself and prosecutrix as "Mr. and Mrs. Parrish," where they remained from Sunday evening until Wednesday night. He held her out at this hotel as his wife, as he did at all of the other hotels where they registered. While there prosecutrix asked Mrs. Rath to call her husband next morning at 5 o'clock. During the conversation Mrs. Rath said something to prosecutrix which led her to believe that Mrs. Rath thought their name was not Parrish, but Lee. Prosecutrix called appellant's attention to this, and told him that she would not remain in the hotel unless he straightened the matter and told the truth about it, and inform Mrs. Rath of their real status. This he declined, and at witness' request they left and registered at the "Windsor Hotel." It was at defendant's suggestion they went by the name of Parrish at Mrs. Rath's. She says: "He told that to Mrs. Rath, the landlady. I came away the next morning after she found out what his name was. I don't know how she found out his name. I didn't stay there any longer, because he would not explain matters to her, and I told him I would not stay unless he did. I wanted him to tell her that were were married, and the circumstances of the case, and he would not do it." It is not necessary to enter into details as to the various times he registered themselves as man and wife at hotels in which he held her out at those different places as his wife. The last of these occurred about the middle of March, 1902. A child was born to them the latter part of April, 1902.

Further, as bearing upon the question of the marriage, and appellant's recognition of the marriage to prosecutrix, witness Pinson Howell testified: "I know Miss Rosa Parrish, and have known her all my life. I remember hearing of her being shot on July 7, 1901. I heard Lon Lee speak about the matter. I believe it was in his place of business when he spoke about it, in his father's saloon, where he worked. He said the shooting occurred at some place east of Farmer's Branch. He told me that he and Rosa Parrish had started to White Rock that day, to a campmeeting. After that I had some little conversation with defendant in reference to Rosa Parrish. He spoke to me about being married to her. That was some time before last Christmas, 1901." "He simply said that he and Rosa Parrish were married, is all that I know. I could not say how they were married. He just said they were married. It is true that defendant, Lon Lee, told me that he had been secretly married to Miss Rosa Parrish. He said he guessed they would go to housekeeping pretty soon." On cross-examination this witness states that he had heard of two fights appellant had had — one with Frank Parrish, uncle of prosecutrix, in regard to her, and the other was with Stringfellow, another uncle of prosecutrix. "It was about that time or after that that I had this conversation with him. He told me that she was his wife. He told me that he was married to Miss Rosa Parrish; I know that."

Along the same line, Brice, a police officer of the city of Dallas, testified, that he was acquainted with defendant, and knew him by the name of Lonnie, while he was working at the Ivy House by the Katy depot. "He and I have talked together quite often. I used to go over there often, and we talked. Some time during the fall of last year [1901] I was in there talking to him one day, and there was a lady in the restaurant. I told him there was a party wanted to see him, and he said, ``Wait a minute;' and I just remarked, ``That is quite a good looking girl.' He said, ``Yes, that is my wife.' And I said, ``I beg your pardon.'" It is unnecessary to further recite acts and conduct of the parties in regard to this question of marriage, except as to the fact of the acts of intercourse occurring. These occurred whenever desired by appellant, and he states that "after July 7th, and before I came to Dallas, I had intercourse with her whenever I desired, and did it very frequently. I did not make any note of the times. I would not try to mention the number of times." Prosecutrix testified, in substance, as did appellant.

As the writer understands the law, these facts constitute marriage. If the license was issued and the minister performed the ceremony would be valid under the statute. If not by virtue of the license, then it will clearly come within the essentials of a common law marriage. Ingersol v. McWillie (Texas Civ. App.), 30 S.W. Rep., 58; Coleman v. Vollmer (Texas Civ. App.), 31 S.W. Rep., 413; Chapman v. Chapman (Texas Civ. App.), 32 S.W. Rep., 564; Id., 41 S.W. Rep., 533; Simmons v. Simmons (Texas Civ. App.), 39 S.W. Rep., 639; Cumby v. Garland (Texas Civ. App.), 25 S.W. Rep., 673; Railway v. Cody (Texas Civ. App.), 15 S.W. Rep., 136; Soper v. Halsey, 85 Hun, 464, 33 N.Y. Supp., 105; Cuneo v. De Cuneo, 59 S.W. Rep., 284, 1 Texas Ct. Rep., 306; Bull v. Bull (Texas Civ. App.), 68 S.W. Rep., 727; McClurg v. Terry, 21 N.J. Eq. 227; Holder v. State, 35 Tex.Crim. Rep.; Simon v. State, 31 Tex.Crim. Rep.; Robertson v. Cole, 12 Tex. 361 [12 Tex. 361]; Mixon v. Cattle Co., 84 Tex. 411 [84 Tex. 411]; Johns v. Johns, 44 Tex. 40; 13 Moore P.C., 242; Barnett v. Kimmell, 35 Pa., 13; Jackson v. Winne, 7 Wend., 47, 22 Am. Dec., 563; Tartt v. Negus (Ala.), 28 So. Rep., 713; Mickle v. State (Ala.), 21 So. Rep., 66; Sharon v. Sharon, 79 Cal. 633, 22 Pac. Rep., 26, 131; Shorten v. Judd, 60 Kan. 73, 55 Pac. Rep., 286.

My brethren hold the marriage testified by the girl to be a "farce and mockery;" "that the minds of the parties did not meet;" that they did not mutually agree to the marriage.

I find this statement in the opinion: "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 the 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."

I take issue with my brethren upon several propositions included in this short excerpt. I insist it is a correct deduction that had appellant "fled from the country" after the events occurring at the Alamo Hotel, he was nevertheless the husband of prosecutrix. If there was a marriage, and an actual consummation of that marriage by cohabitation before they left the hotel, his flight could not alter the status thus brought about. The contract was consummated. That their minds met, that it was a mutual agreement, that the marriage was insisted upon by appellant — brought about by his earnest solicitations — the facts make unquestionably true, if the testimony is to be believed. Marriage is like any other civil contract, and governed by the same rules as to fraud. But the rule in regard to fraud has here been subverted, and the party perpetrating the fraud is justified in taking advantage of his own wrong, to the disgrace and infamy of the innocent victim, who contracted the marriage in good faith. I have searched authorities for a decision sustaining the proposition that under circumstances of this character a man can perpetrate such a fraud upon a woman through the solemnization of the marital ceremony, and after cohabitation himself declare the marriage a nullity. There are authorities which tend to support the theory that the woman, the innocent and injured party, might take advantage of the fraud by divorce proceedings, if she promptly acted upon her knowledge of the fraud. But I find no authority which gives the party perpetrating the fraud that right, even where resort is had to judicial proceedings. In Robertson v. Cole, 12 Tex. 361, Judge Hemphill, for the Supreme Court, said, "where the husband obtained the license, and subsequently married under the license, by means of perjury and fraud, that the girl could take advantage of that fraud in divorce proceedings, if she acted before the final consummation of the marital relation by sexual intercourse." This is an outpost case, even in favor of the innocent party. The case of Johns v. Johns, 44 Tex. 40, was a divorce proceeding in which the plaintiff, as husband, sought to annul the marriage on the ground that his consent was obtained by force and undue influence. He complained that appellee caused him to be arrested on a warrant charging him with having seduced her, and that the sheriff, after making the arrest, took him to the office of the justice of the peace, and appellant, being ignorant of the law, appealed to the officers of the law and the bystanders to know what to do in order to be liberated. The justice of the peace, deputy sheriff, clerk of the district court, and other persons advised him that it would be lawful and to his interest to marry prosecutrix, and thereby he would be relieved from the prosecution for seducing her. Upon these grounds he stated in his petition that the marriage was not valid and legal, and that their living together as man and wife was intolerable and insupportable. The trial court refused the divorce, and the Supreme Court affirmed the judgment. Speaking of this, the court said: "The plaintiff appears to have understood that the marriage would cancel the offense with which he was charged and release him from custody. He knew whether or not he was guilty of the charge against him when he married, and he can not now cancel the marriage, and rid himself of the marriage as he did the prosecution, without showing a better reason for it than he was given in his petition." In that case the marriage was procured by fraud and perjury, and the plaintiff, who was a minor, was married without the consent of her parents. In cases of seduction the party charged with crime has the option to marry the girl and avoid the consequences of the seduction, or stand his trial, with the chances of conviction and punishment. This is not a compulsory marriage; it is optional with the accused whether or not he marries the seduced woman. Even from the standpoint of this statute, a marriage of this kind, under the decision of my brethren, would not be a meeting of the minds of the parties. It would not be a mutual agreement, and therefore not a marriage, if the seducer "fled from the country" after marriage. If it be necessary that the minds of the "parties must meet," in Johns v. Johns, supra, there was not a meeting of the minds of the parties, for there was a mental reservation by the seducer that he would not be bound by the marriage, and sought a divorce. It would have been a case of rape, not a marriage, if my brethren be correct. If marriage be a civil contract, it follows that parties assuming that relation are bound by it despite mental reservations to the contrary by one of them. Tartt v. Negus (Ala.), 28 So. Rep., 713; 13 Moore, P.C., 242. An accused may marry to avoid the punishment for seduction, with the mental reservation not to fulfill the marital relations. He may marry simply to avoid the consequences of his crime; but this does not affect the good faith of the marriage, nor make the intercourse rape by fraud. It is as binding, nevertheless, as any other character of marriage. If such a marriage has been annulled on the ground of want of mutual consent, it has escaped the observation of the writer. The rule for which I contend is sustained by the authorities. Jackson v. Winne, 7 Wend., 47, 22 Am. Dec., 563; Barnett v. Kimmell, 35 Pa., 13. In Barnett v. Kimmell, 35 Pa., 13, the doctrine was thus laid down: "Consent to a marriage will be presumed from the formal ceremony of marriage, although there was a secret intent on the part of one of the parties not to perform the duties of the marriage relation." And this marriage is complete when the parties have assented to it. Robinson v. Robinson, 188 Ill. 379, 58 N.E. Rep., 906; Elzas v. Elzas, 171 Ill. 632, 49 N.E. Rep., 717; Stevens v. Stevens,56 N.J. Eq. 488, 38 Atl. Rep., 460; O'Gara v. Eisenlohr, 38 N.Y. 296; Cuneo v. De Cuneo, 59 S.W. Rep., 284, 1 Texas Ct. Rep., 306. Cohabitation is not necessary to the completion of the marriage or to make a marriage contract valid. Franklin v. Franklin,154 Mass. 515, 28 N.E. Rep., 681; Hulett v. Carey, 66 Minn. 327, 69 N.W. Rep., 31, 34 L.R.A., 384, 61 Am. St. Rep., 419; Jackson v. Winne, 7 Wend., 47, 22 Am. Dec. 563. Nor does an agreement that the marriage is to be kept secret affect the validity of that marriage, though it may cast a suspicion upon the intent of the parties. Sharon v. Sharon, 79 Cal. 633, 22 Pac. Rep., 26, 131; Shorten v. Judd, 60 Kan. 73, 55 Pac. Rep., 286. If the marital contract is complete, and marriage occurs — they agree to live together as husband and wife — the fact that they agree to keep the marriage secret does not affect the marriage. It is a contract by which the parties are bound, as much so as if it were any other civil contract, whether the world knew it or not, and constitutes a valid marriage. Judge Neill, speaking for the Court of Civil Appeals, in Cuneo v. De Cuneo, 59 S.W. Rep., 284, 1 Texas Ct. Rep., 306, among other things uses this language: "The present consent and agreement between the parties is the gist of the common law marriage. It requires only the agreement of the man and woman to become then and henceforth husband and wife, and the marriage is complete. Simmons v. Simmons (Texas Civ. App.), 39 S.W. Rep., 639. It is not sufficient to agree upon a present cohabitation and a future marriage. 1 Bishop, Mar., Div. and Sep., sec. 262; Cartwright v. McGown, 121 Ill. 388, 12 N.E. Rep., 737, 2 Am. St. Rep., 105. It is required that the cohabitation be as man and wife and in pursuance of the marriage contract. It can of itself be no part of the marriage contract, except it take place after and not before the agreement. Soper v. Halsey, 85 Hun, 464, 33 N.Y. Supp., 105; Farley v. Farley,94 Ala. 501, 10 So. Rep., 646, 33 Am. St. Rep., 141. ``A consent de praesenti is essential to such a marriage, and a subsequent marriage is established by a proof of a promise and a copula, on the ground that the copula was a consequence and performance of an anterior promise. The copula does not constitute marriage, but it is taken, when circumstances justify it, as evidence of the performance of a previous promise.' Rodg. Dom. Rel., sec. 87; Simmons v. Simmons, supra."

Perhaps it is useless to pursue this line of thought or investigation. Tested by the authorities and all the rules of law and fact applicable to this record so far as I am apprised, if the testimony of prosecutrix is true or believed by the jury, the marriage is valid. Certainly appellant can not say nay. He will not be permitted to deny that his mind met that of prosecutrix. Why? Because it was at his instigation she came to Dallas, and it was at his urgent request and solicitation she married him, and for his gratification she submitted her body to his desires. So, we have by the testimony an actual marriage, followed almost immediately by cohabitation, and continuing to within about a month of the birth of their child. There is nothing wanting under her testimony to make a complete marriage, and if appellant had died before the second marriage there would have been no question of the right of prosecutrix and the child to inherit whatever of his property the law would set apart to his widow and child. It is not asserted the second marriage annulled the first. This could not be the law, if asserted.

Suppose appellant had been charged with seduction of the prosecutrix, instead of rape, and she had testified the marriage occurred under the circumstances detailed and subsequent to the seduction, would it be contended for a moment that any court in this State would permit a conviction for seduction? Certainly not. Or suppose appellant had been tried for bigamy for the second marriage, with this testimony before the jury would it not have become the bounden duty of the trial court to charge the jury, if they believed the facts stated, appellant would be guilty of that crime in contracting the second marriage? Most assuredly. I desire to say, in concluding this branch of the case, that prosecutrix's testimony as to the marriage is denied by appellant in toto. He says the ceremony never occurred; so there is a square issue as to whether or not the marriage took place. But if the jury believed it occurred then the girl is not contradicted. In fact, by appellant's letters, by his confessions, by his acts, by his holding her out at the hotel and thus to the world as his wife, by his admissions and statements, and by all his conduct, the testimony of the girl is corroborated, it occurs to me, in the fullest manner. His admissions alone are proof of his marriage. Miles v. United States, 103 U.S. 304, 26 L.Ed., 481; State v. Hughes, 35 Kan. 626, 12 Pac. Rep., 28, 57 Am. Rep., 195; State v. Hilton, 3 Rich. Law, 434, 45 Am. Dec., 783; Cameron v. State,14 Ala. 546, 48 Am. Dec., 111; Wolverton v. State, 16 Ohio, 173, 47 Am. Dec., 373; Forney v. Hallacher, 8 Serg. R., 159, 11 Am. Dec., 590; Jackson v. People, 2 Scam., 23.

In regard to the other branch of the case, in which the court charged the jury to find appellant guilty of "rape by fraud," it occurs to me this is so utterly at variance with the law that the mere statement of the proposition brings its own refutation. If the majority be correct, then a man, after inducing a girl to enter the marital relation with him, may desert and leave her a wreck on society, his children bastards, and this desertion form the basis of "rape by fraud." In order to sustain this ruling of the trial court, every decision in Texas on the question must be ignored. Quoting from the opinion of the majority: "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. Rep.; Milton v. State, 23 Texas Crim. App., 204; Milton 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 facts 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 was a married woman." This excerpt overrules another line of decisions, many of which are expressly mentioned.

In regard to the fraud which must be used where the woman is married, this language is found in article 636, Penal Code, 1895: "The fraud must consist in the use of some stratagem by which the woman is induced to believe the offender is her husband." The majority further say: "From these authorities 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." I might perhaps rest upon the statement of the majority that all of the decisions in Texas heretofore rendered are in direct conflict with their opinion, for all former decisions expressly hold that the article just quoted refers only to married women; that is, to a woman married to some person other than the party accused of the rape. The article under discussion has been enacted and re-enacted by legislative bodies, and again and again given the same construction. And in Payne's case, supra, the court went so far as to hold "that an indictment which charges a rape by fraud in personating the husband, in order to be sufficient, must allege that the injured female is a married woman, and not the wife of defendant."

But there are two or three suggestions I desire to make in regard to this matter. It will be noticed that in our Penal Code each class of offenses is treated as a harmonious whole in regard to the subject about which the legislation occurred. In regard to illlicit intercourse, for instance, we find statutes prohibiting fornication, adultery, abduction for the purpose of marriage, etc., rape, assault to rape, attempt to rape, rape by force, rape by threats, rape by fraud, rape upon imbecile women, rape upon girls under 15 years of age with or without force, with or without consent, and statutes against incest, bigamy and seduction. Each of these crimes has within itself constituent elements, differing it from each of the others. They have been carved out by the Legislature, and were intended to be separate from and not to trench one upon the other; that each is an independent offense, made up of the elements set out in its definition, and each peculiar to itself, by the legislative act. The opinion in this case is an entering wedge into this division or subject of our Penal Code, the harmony heretofore existing is broken, confusion the result, and what has heretofore been bigamy may become rape by fraud; what has been a valid marriage to avoid the consequences of seduction is or may be a rape by fraud; and so it may be of incest, if the marriage is followed by sexual intercourse. It strikes at the fundamental constituent elements of these different offenses, and blends them all into one general "hotchpotch," denominated "rape by fraud." This construction saps the very foundation of the marital relation, and wipes out all statutory distinctions between these crimes and that of "rape by fraud." I can not agree that the prior decisions are "interpolations on the statute." The opinion in this case is the "interpolation." The legislative mind intended what the courts have heretofore held, and what a casual inspection of those statutes demonstrates; and from these there has been no dissent, either from bench or bar, until the decision in this case. Decisions heretofore rendered have been recognized as correct; that is, that a rape by fraud upon married women must be by a party other than the husband or alleged husband of the ravished woman. Applying the doctrine now laid down by this case to the crime of bigamy, it will be found that whenever the accused enters into a bigamous marriage, and that marriage is consummated by sexual intercourse, it necessarily is rape by fraud. Why? Because such marriage is a fraud on the part of the bigamous husband. The accused in such case can not enter into a second marriage; it is void by law, by reason of the previous existing marriage; therefore it must be fraudulent. There would be no question that the accused in a bigamous marriage would thereby induce the woman, however innocent she may be, to believe that he is her husband. That point being reached, their decision is or may be authority for the conviction for a "rape by fraud." I had heretofore thought this was one of the distinguishing characteristics between bigamy and rape. So, in seduction, if the accused, in order to avoid conviction for seduction, marries the woman, without intending to live with her; that his mind did not meet with hers; that he had a secret mental reservation to discard the marital relation; that he was not performing the marriage in good faith — he would thereby be perpetrating a fraud upon the woman in order to keep out of the penitentiary for the seduction, and therefore guilty of rape by fraud, and his marriage consummated to avoid the consequences of the seduction would be incontestible proof of the more heinous crime of "rape by fraud," for which his life could be forfeited, despite the holding of the Supreme Court that it does not constitute ground for divorce. So of incestuous marriage, if the act of sexual intercourse occurs it makes rape by fraud more than a possibility, and so of most of the prohibited acts of illicit intercourse. The court finds the facts true, but the acts and purpose of one party fraudulent; hence the presumption in favor of marriage and presumption of innocence and reasonable doubt are unitedly turned against the accused. These presumptions should have been indulged favorably to appellant, and not to force conviction. This case may be the progenitor of another line of decisions at variance with all prior decisions, and contrary to all statutory provisions on the subject, the result of which is not readily contemplated or easily foreseen.

For the reasons indicated, I can not concur with my brethren. The opinion is wrong in principle, and will be vicious in its application. Therefore I enter this my solemn protest, and respectfully dissent.

March 31, 1903.