The opinion
1. If living together as husband and wife publicly and known of all men and so recognizing each other and so recognized in addition by all the family connections and relatives, and this for nearly a year and until his arrest, could show a common law marriage, the evidence constituted such common law marriage, and would have been a legal one but for the prior marriage and the recent decision of the Supreme Court so holds. I do not care to again review the facts. See Dumas v. State, 14 Texas Crim. App., 464, and all subsequent cases.
2. The State proved there was no intercourse in Eastland County where conviction occurred, by positive evidence of the prosecutrix. She was an unfriendly witness to and against defendant. Rape is absolutely dependent upon "penetration." See statute defining rape. The State not only failed to prove the case but absolutely disproved it. My brethren hold it could not be bigamy but only rape, and yet hold the State had the right to carve its case and could prosecute for rape or bigamy as officers saw proper. Much learning has been quoted in prevailing rehearing opinion that has no application to the case and made to do duty erroneously. I do not care to discuss the majority opinion further. This conviction is without authority of law or evidence, but against both.