This is a conviction for incest. The appellant was tried and acquitted of incest under an indictment which charged that the crime was committed by having carnal knowledge of one Pauline Leitz. The indictment in this case charges that the incest was committed by having carnal knowledge of one Pauline Seitz. In bar of the prosecution under the second indictment, the acquittal under the first was interposed and pleaded by the defendant. Ques*389tion: Was the acquittal under the first indictment — that which charged that the name of the female was Pauline Leitz — a bar to the prosecution under the second indictment, which alleged the name of the female to be Pauline Seitz? This question must be answered in the negative, unless proof that the defendant had carnal knowledge of Pauline Seitz would have supported the allegation that defendant had carnal knowledge of Pauline Leitz. Evidently a variance between the allegation as to the name of the female and the proof is apparent, for the names are neither the same nor idem sonans.

Counsel for appellant contend that the evidence is insufficient to support the indictment in the following particulars:

1st. “ That the venue is not proved by sufficient evidence, but was left to inference.” To the character of evidence we can see no objection. The venue may be established by circumstantial evidence, as well as the crime itself.

2d. “ The legal marriage of defendant with the mother of Pauline Seitz, the step-daughter of defendant, was not proved by affirmative evidence.” The evidence of the marriage of the mother of Pauline and defendant is amply sufficient. It is not necessary to prove the marriage by a witness who was present when it was celebrated and who witnessed the same. Marriage in this case, when an issue in the case, can be proved by circumstantial, presumptive evidence.

3d. “ That there was no proof that Mrs. Nance, the wife of defendant, had been divorced from her former husband, the father of Pauline, or that he was deceased at the time of her marriage with defendant.” The only evidence in the record that Mrs. Nance had ever been married to any other person than defendant is the fact that she had a child named Pauline Seitz, who was not the daughter of defendant. Counsel for appellant very plausibly argues that for this fact it must be inferred that Mrs. Nance had formerly been married to one Seitz, and that therefore the rule laid down in MaOrew v. The State, 13 Texas Ct. App., 340, should be applied. In the McGrew case there was evidence of a former marriage between Ann McGrew and one Andrew Jameson, besides that furnished by the fact that Alice Jameson was the daughter of Ann McGrew. In this case there is no such evidence; hence the rule in McGrew’s case was not applicable, and the State was not required to prove a divorce or that Seitz was dead at the time of the marriage between defendant and Amerial Nance.

4th. “ That the evidence is not sufficient to establish the carnal *390knowledge of Pauline Seitz by defendant.” Defendant not only confessed having carnal intercourse with Pauline, but from, his conversations with the witnesses the conclusion is inevitable that this was quite frequent. We have examined all of the questions presented by appellant in his brief, and fail to discover such error as would require a reversal of the judgment of the court below. The charge of the court we think is very favorable to defendant, and is not obnoxious to the criticism of counsel for appellant.

The judgment is affirmed.

Affirmed.

[Opinion delivered January 10, 1885.]