
    AHLBERG v. STATE.
    (No. 5790.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1920.
    On Motion for Rehearing, Nov. 17, 1920.)
    1. Bigamy @=ol I — Evidence held to prove common-law marriage to alleged first wife.
    In prosecution for bigamy involving issue of marriage to alleged first wife, evidence 'that the parties long openly lived together as husband and wife, and held themselves out as such, supplemented by declarations of the defendant to the effect that they were married, held sufficient to prove common-law marriage.
    2. Criminal law <&wkey;823(4) — Instruction as to “implied” marriage agreement held not misleading.
    In prosecution for bigamy involving issue of whether defendant was married to alleged first wife, instruction that “agreement to become husband and wife may be expressed or implied,” and that an ¿‘implied agreement” is one “where the conduct of the parties with reference to each other and the subject-matter is such as to induce the belief, if any, that they mutually intend to do that which their acts indicate they have done,” held not misleading, in view of evidence and special charges given, notwithstanding use of term “implied agreement,” such term as used merely denoting the character of evidence by which the agreement was to be established.
    3. Criminal law <&wkey;387 — Testimony that witnesses had never heard defendant disclaim marriage to alleged first wife held admissible.
    In prosecution for bigamy involving issue of whether defendant had been married to alleged first wife, witnesses who testified that defendant and alleged wife had lived together and held themselves out as husband and wife, and that defendant described her as his wife in introducing her to his friends, were properly permitted to testify that they had never heard defendant disclaim the relationship.
    4. Bigamy <&wkey;9 — Proof of birth of child by alleged first wife during cohabitation with defendant admissible.
    In prosecution for bigamy involving issue of whether 'defendant was married to alleged first wife, there was no impropriety in receiving proof that a child was born to alleged first wife during her cohabitation with defendant.
    
      5. Witnesses <&wkey;379(5) — Letter from defendant to child of alleged first wife held admissible in view of defendant’s denial of parentage.
    In prosecution for bigamy involving issue of -whether defendant was in fact married to alleged first wife, where defendant had in his testimony questioned his parentage of child born to alleged first wife during her cohabitation with defendant, admission of defendant’s letter to such child, calling her his little girl, expressing a desire to be present on her birthday, and regretting his inability to spend that day with the mother and daughter, h eld admissible.
    On Motion for Rehearing.
    6. Bigamy <&wkey;l I — Evidence held to sustain conviction.
    In prosecution for bigamy involving issue of whether defendant was married to alleged first wife, evidence held to support judgment of conviction irrespective of the question of a common-law marriage.
    7. Criminal law &wkey;>406(5)— Defendant’s admission that he was married prior to alleged bigamist marriage competent evidence.
    In prosecution for bigamy, involving issue of whether defendant was married to alleged first wife, admission of defendant that he was married prior to alleged bigamous marriage held competent • evidence against him.
    8. Criminal law &wkey;1172(1) — Instructions as to common-law marriage held harmless in view of evidence proving statutory marriage.
    In prosecution for bigamy involving the issue of whether defendant was married to alleged first wife, objections to court’s charge in reference to common-law marriage held harmless, in view of sufficiency of evidence to prove a statutory marriage.
    9. Criminal law <&wkey;730(3) — Prosecuting attorney’s question to defendant held not ground for reversal where objection was sustained.
    In prosecution for bigamy, involving issue of whether defendant was married to alleged first wife, conduct of prosecuting attorney in asking defendant if he had not been warned by a certain neighbor'that his course of conduct would likely get him into the penitentiary, where objection thereto was sustained by court, held not ground for reversal.
    10. Criminal law &wkey;>656(3) — Comment of court in ruling on objection held not on weight of evidence.
    In prosecution for bigamy, involving issue of whether defendant was married to alleged first wife, where prosecuting attorney asked defendant if he had not been warned by certain neighbor that his course of conduct would likely get him into the penitentiary, action of court in stating, on objection to such question, that it occurred to the court that the proposition involved the giving of advice by a third party by which the appellant was not bound, held not a comment on weight of evidence or in any way harmful to defendant.
    Appeal from District Court, Milam County; John Watson, Judge. '
    Oscar H. Ahlberg was convicted of bigamy, and he appeals.
    Affirmed.
    S. J. Dotson, of Electra, and E. B. Simmons, of Taylor, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for bigamy. The appellant was married to Audrey Clark: in June, 1919. A prior marriage to Ellen Ahlberg was charged, and supported by proof going to establish a common-law rather than a statutory marriage. There was evidence that Ellen Ingall left her home in company with appellant in December, 1909; that soon thereafter appellant wrote the sister of Ellen to the effect that he and Ellen were married. They returned together to -her father’s home, and openly lived together as man and wife there and elsewhere for about nine years. The woman gave birth to a child, which, according to the state’s evidence, was claimed by the appellant as his own, and' was treated by him as a daughter. He introduced Ellen as his wife upon various occasions, according to the evidence, and the conduct of each of them towards their neighbors was such as to indicate that they were husband and wife.

The appellant testified that he and Ellen began living together without any agreement that they would become husband and wife or that they would continue'to live together during their lives. He disclaimed having declared that she was his wife, and claimed that he parted from her a few months before the date of his marriage to Audrey Clark.

The court instructed the jury, in substance, that “if the parties mutually consent and agree together to become husband and wife, and thereafter carry out that agreement and live and cohabit together as husband and wife; and hold each other out to the public as such, the marriage would be valid under our law.” This embodies the principle which has repeatedly been given the sanction of this state. In Hearne v. State, 50 Tex. Cr. R. 431, 97 S. W. 1050, it is said:

“Whatever be the form of ceremony, or if there be no ceremony, if the parties agree to take each other for husband and wife, and from that time on live professedly in that relation, proof beyond a reasonable doubt of these facts would be sufficient proof of a marriage, binding on the parties.” Burks v. State, 50 Tex. Cr. R. 47, 94 S. W. 1040, and cases collated in dissenting opinion in Melton v. State, 71 Tex. Cr. R. 138, 158 S. W. 550.

In Grigsby v. Reib, 105 Tex. 611, 153 S. W. 1130, it is said:

“Marriage is not a contract, but a status created by mutual consent of one man and one woman. The method by which it is solemnized or entered into may be by proceedings prescribed by statute, or by mutual agreement -with cohabitation, but, however contracted, having the same elements and producing the status of husband and wife. The sole- difference which can legally exist is in the method of expressing consent.”

The proof requisite to establish the existence of the relation of husband and wife has been the subject of frequent comment, and proof considered in civil cases sufficient has been held inadequate in criminal prosecution. Underhill on Criminal Evidence, §§ 403 and 404; Wharton’s Crim. Evidence, p. 472. In the instant case there is evidence that the parties long openly lived together as husband and wife, held themselves out as such, supplemented by declarations of the appellant to the effect that they were married, by which the rule sanctioned by this court is complied with. Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241; Bryan v. State, 63 Tex. Cr. R. 204, 139 S. W. 981; Waldrop v. State, 41 Tex. Cr. R. 197, 53 S. W. 130; Ingersoll v. McWillie, 30 S. W. 61; Grigsby v. Reib, supra.

Particular complaint is made of the part of the charge which says:

“Such agreement to become husband and wife may be expressed or implied. An expressed agreement is where the parties expressly so agree; an implied agreement is one where the conduct of the parties with reference to each other and the subject-matter is such as to induce the belief, if any, that they mutually intend to do that which their acts indicate they have done.”

It may be that the term “implied agreement” is not an apt one in the connection used. The agreement to live together as man and wife was an essential element in establishing the marriage status. As used in the charge, probably the term denotes merely a difference in the character of evidence by which the agreement is to be established; that is, whether by direct statement, such as the admission that the agreement had been made, or by the proof of facts from which it might be inferred. Fordtran v. Stowers, 52 Tex. Civ. App. 226, 113 S. W. 631; Wojhan v. Bank, 144 Wis. 646, 129 N. W. 1068. Assuming that the charge would have been prov-eed by the omission of the paragraph mentioned, we think, in view of the evidence and the special charges given at appellant’s request, the jury could not have been misled. Contained in the special charges given is the statement:

“To constitute a common-law marriage, the parties must unconditionally agree to live together as husband and wife during their lives, and then live'together and cohabit as such, and so hold themselves out to the public.”

In our opinion there was no error committed in permitting the witnesses, who testified to the facts going to show that the appellant and his reputed wife lived together and held themselves out as husband and wife, and that the appellant described her as his wife in introducing her to his friends, to add that they had never heard the appellant disclaim the relationship.

There was no impropriety in receiving the proof that a daughter was born to Mrs. Ahlberg during her cohabitation with the appellant. Waldrop v. State, 41 Tex. Cr. R. 199, 53 S. W. 130; Bank of Black Rock v. Decker, 65 Ark. 33, 44 S. W. 220.

The appellant having by his testimony questioned his parentage of the daughter, his letter to her calling her his little girl, expressing a- desire to be present upon her- birthday, and regretting his inability to spend that day with the mother and daughter, was properly received.

Bills of exceptions not discussed, including those reserved to remarks of counsel, have been carefully examined, and disclose, so far as we are able to determine, no harmful departure from the rules of practice.

The judgment is ordered affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant has filed his motion for rehearing in this ease, in which he strenuously urges two questions for our consideration ; the first question being that the evidence doeifnot sufficiently support the verdict, and does not measure up to the law’s requirements in regard to a common-law marriage.

In addition to upholding what has been said heretofore in this regard by this court in its opinion, we desire to add thereto the following:

The statement of facts discloses that a witness testified that appellant left home some time in December of 1909, with the woman alleged in this case to be his first and living wife, and that soon after leaving home appellant wrote back that he -and said woman Ellen Ingall, known in this record as Ellen Ahlberg, were married. Said witness further testified, as did a number of others, that some time during the same month appellant and said woman returned and called each other husband and wife, appellant introducing said woman as his wife, and thereafter for many years lived with her, all the time giving out that she was his wife, and that her daughter was their child. People with whom appellant traded, and who were well acquainted with him and his first wife, Ellen, and who lived in their immediate neighborhood, and the doctor who waited on said wife during confinement, all joined in testifying to the’ relation of appellant and said woman, accompanied by his declarations throughout a period of approximately 10 years. The only witness who denied the fact of appellant having married said woman with all the formalities prescribed by statute was appellant himself, who testified, as a witness in Iiis own behalf, that be never bad married said woman at any time.

Tbe trial court, in bis charge to tbe jury, defined what constituted a statutory marriage in this state, and also what constituted a common-law marriage, and then proceeded to instruct them that if they found from tbe evidence that appellant, having a lawful wife then living, did marry Audrey dark, they should find him guilty of bigamy.

We have carefully gone over tbe entire record, and think the evidence entirely sufficient to support the judgment, irrespective of the question of a common-law marriage.

The admission of the appellant that he was married prior to the alleged bigamous marriage is competent evidence against him. Gorman v. State, 23 Tex. 646; Bell v. State, 33 Tex. Cr. R. 163, 25 S. W. 769; Bryan v. State, 63 Tex. Cr. R. 204, 139 S. W. 981.

It has also been held in this state that a former marriage may be proven by general repute, taken in connection with evidence of cohabitation and the admissions of the accused. Atkinson v. State, 34 Tex. Cr. R. 424, 30 S. W. 1064; Dumas v. State, 14 Tex. App. 464, 46 Am. Rep. 241.

This court in Johnson v. State, 68 Tex. Cr. R. 104, 150 S. W. 936, cites approvingly the Dumas Case, supra, holding; that the confession of accused, together with evidence of cohabitation and other circumstances, will sustain a conviction for bigamy, and such is our opinion. The production of the license for the first marriage is not indispensable, nor is it necessary to produce witnesses who were present at such marriage. Nance v. State, 17 Tex. App. 389; Morville v. State, 63 Tex. Cr. R. 553, 141 S. W. 102.

It is apparent from the record that appellant and Ellen Ingall went away from the neighborhood in which they lived, in December, 1009, and that he wrote back soon after they loft that he and Ellen were married; that when he came back he took her to his home as his wife; that for a number of-years he introduced her as such, and called her children his; and in every dther way acted toward her in entire corroboration and cognizance with and of the statement contained in his written communication that they were married.

We think this justified the jury in concluding that the parties were legally married; and we further observe that the other matters in the court’s charge, in reference to a common-law marriage, which are complained of, at most were wholly harmless.

Complaint is also made in this motion that, while appellant was on the stand testifying, the prosecuting attorney asked him if he had not been warned by a certain neighbor that his course of conduct would likely get him into the penitentiary. This question was objected to, and during the course of a discussion with the prosecuting attorney, who was urging its admissibility, the court remarked that it occurred to him that the proposition involved the giving of advice by a third party, by which the appellant was not bound in any way, and the prosecuting attorney replied that he did not seek to bind the appellant by the advice. The court sustained the objection and the question was not answered. It is only claimed in support of the matters complained of in bills of exception Nos. 3 and 4, which set out appellant's proposition in regard to the above matters, that the question of the county attorney was necessarily harmful to the appellant. We do not think so, and, in view of the fact that the trial court sustained the objection, we are unable to perceive any ground for reversal of this case because,of such matter. We do not think the court’s remark to the prosecuting attorney constituted a comment on the weight of the evidence, or was of such character as could injure the appellant. We have found nothing in this motion which leads us to conclude that the former opinion of this court was in any wise incorrect, and said motion is overruled. 
      <2=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      (gzvjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     