
    REED v. STATE.
    (No. 7429.)
    (Court of Criminal Appeals of Texas.
    Oct. 24, 1923.
    Rehearing Denied Nov. 21, 1923.)
    1. Fornication <&wkey;9—Evidence held to sustain' conviction.
    Evidence held to sustain a conviction for fornication.
    2. Marriage <&wkey;20 (I)—Written agreement and cohabitation alone insufficient to constitute common-law marriage.
    A written agreement of the parties to be husband and wife and cohabitation pursuant thereto, is insufficient to constitute a common-law marriage, it being necessary that such cohabitation and living together be professedly as husband and wife.
    3. Criminal law <&wkey;73&(14)—Improper remarks of county attorney held not ground for reversal.
    In fornication prosecution, improper remarks of the county attorney as to his opinion of a common-law marriage, which were promptly checked and reproved by the trial judge, who also instructed the jury not to consider the same, held not to call for a reversal
    4. Criminal law &wkey;>1038(4)—In misdemeanor casé request for charges must be written, or exceptions to denial thereof will not be considered.
    Requests for charges must be written, or an exception to the court’s denial thereof will not be considered on appeal in a misdemeanor case.
    <5&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Tom Green County Court; J. T. Mathison, Judge.
    Marie Reed was convicted of fornication, and she appeals.
    Affirmed.
    Wright & Harris, of San Angelo, for appellant. <
    R. G. Storey, Asst. Atty. Gen., for the •State.
   LATTIMORE, J.

Erom a conviction for fornication in the county court of Tom Green county appellant brings this appeal.

The only defense was that of a common-law marriage between appellant and Hardy Hay, her alleged paramour. She testified that in 1919 he brought to her a written marriage contract which he had signed, and that she signed same, and that thereafter they lived together as husband and wife. The written agreement was not produced, and she said it was lost. The attorney who drew up a written agreement for Hardy Hay testified to that fact, and that Hay signed it in his presence. Combating the proposition of a common-law marriage, the state showed that each year since 1919 appellant had given her name to the telephone directory as Marie Reed. A witness who moved appellant about a year before this trial said he asked her if she was married to Hardy Hay, and she said she was not. The city marshal testified that he knew appellant as a single woman, not as a married woman.

The learned trial judge gave a special charge prepared by appellant defining a common-law marriage, and instructed the jury that, if from the evidence in the case they believed that appellant and Hardy Hay, on or about July 15, 1919, had entered into a written agreement whereby they agreed to be husband and wife, such agreement constituted a legal marriage, and appellant should be acquitted. We think such an agreement standing alone would not amount to a valid marriage under the common law, and that the charge given was favorable to appellant. Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Cas. 1915C, 1011.

The remarks of the county attorney as to his opinion of a common-law marriage, being promptly checked and reproved by the trial judge who also told the jury not to consider same, would not call for a reversal. The bills of exception to questions asked by the state’s attorney, objections to which Were sustained by the court, present no reversible error.

Objection to' remarks of the county attorney as to the burden of proof on the issue of a common-law marriage does not seem to have been followed by any written requested charge instructing the jury not to consider such remarks. It is held by this court'that the trial court need not give requested instructions, unless presented in writing. Murray v. State, 38 Tex. Cr. R. 677, 44 S. W. 830; Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 52. If any written request for such instruction was presented, it does not appear in thq record. This is a misdemeanor ease, and, in order to secure consideration of an exception to the failure to give that which appellant deemed to be a proper instruction as to the law, a written instruction must have been presented to the trial court embodying said legal proposition. Sloan v. State, 75 Tex. Cr. R. 33, 170 S. W. 156; Noodlemen v. State, 74 Tex. Cr. R. 611, 170 S. W. 710.

Finding no error in' the record, the judgment will be affirmed. ■

On Motion for Rehearing.

HAWKINS, J.

It is urged that we were in error in concluding the evidence to be sufficient to sustain the conviction, and, further, it is contended that the finding of the jury against the purported “common-law marriage” is not supported by the evidence. We are not in accord with these contentions. As stated in our original opinion, the charge given relative to the common-law marriage was more favorable to appellant than she was entitled to. Again we think appellant in error in lier contention that, if the agreement to marry be conceded, the other evidence is sufficient to show a consummation of the marriage. The evidence shows a cohabitation between her and Hay unquestionably, but, under the authority of Grigs-by v. Reib, cited in our former opinion, this would not be enough. As we understand that case, there must be not only an agreement to become husband and wife with subsequent living together and cohabitation,' but also that such cohabitation and living together must be “professedly” (as that opinion puts it) as husband and wife. In this case there was no such profession, no holding out to the public that such relation existed between them. On the contrary, appellant continued to go by her maiden name, and expressly denied that she was married to Hay.

• The motion for rehearing will be overruled.  