This appeal is from a conviction for incest. As averred in the indictment, the charge was that defendant, at the time laid, “then and there being a married man having a lawful wife, to-wit, Ann McGrew, did have unlawful carnal connection with and unlawfully and carnally know one Alice Jameson, the offspring and daughter of his said wife.”

To establish the crime thus charged it was essential that the State should prove that Ann McGrew, the mother, was the lawful wife of defendant. It is shown by the evidence before us that the parties were married according to the forms of law. But the evidence further shows that a previous marriage had existed between Ann McGrew and one Andrew Jameson, and that the girl with whom the incestuous intercourse was had was the issue of this previous marriage. Ho where, however, is it made to appear that at the time of the second marriage the first *343had been annulled, either by divorce or by the death of the first husband. Upon this point the only evidence in the record is a statement in the testimony of Ann McGrew to the effect that “my first husband died in Grimes county, as I understand.” From this statement it is extremely uncertain that the first husband is dead; and, if dead, did he die before or after her second marriage? If after, then the second marriage was a nullity, provided she had not been divorced from him, and she could not become the lawful wife of McGrew by virtue of such illegal marriage. If she was not his lawful wife, then the illicit connection of McGrew with her daughter by the previous marriage, however reprehensible in morals, would not constitute the crime of incest in law. Divorce from or the death of the first husband at the time of the second marriage should have been proven affirmatively, because absolutely essential to the establishment of the crime charged, and to the validity of a conviction under the circumstances stated.

Because the evidence is insufficient, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered January 13, 1883.