
    WOFFORD v. STATE.
    (Court of Criminal Appeals of Texas.
    June 15, 1910.
    On Motion for Rehearing, Jan. 4, 1911.)
    1. Criminal Law (§ 1111) — Bill of Exceptions — Explanation by Court — Conclusiveness. ,
    , An explanation by the trial judge of the bill of exceptions which is accepted by accused is binding on accused and on the court on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. § 1111.)
    2. Criminal Law (§ 696) — Trial—Evidence —Objections—Rulings.
    Where the record showed that after evidence had been admitted without objection, the court held that it was inadmissible and instructed the jury to disregard it, the reguest of accused moving to strike the_ question and answer from the record and to instruct the jury not to consider the same was sufficiently complied with.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1639; Dec. Dig. § 696.]
    3. Criminal Law (§ 656) — Trial—Improper Conduct op Judge.
    The remarks of the trial judge in response to a motion to strike out the evidence of pros-ecutrix that she, under 15 years of age, had not had intercourse with any one but accused on trial for rape, that the evidence might not be admissible under the law, but that it ought to be, and that the evidence was in, and that accused could produce his authorities and the court would strike it out if the law required it, were only a comment on the admissibility of the evidence and not an expression of opinion of the guilt or innocence of accused.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1524-1533; Dec. Dig. § 656.]
    4. Marriage (§ 13) — “Common-Law Marriage’ ’ — Requisites.
    The essential element of a “common-law marriage” is a mutual agreement of the man and woman to become then and thenceforth husband and wife.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. § 4; Dec. Dig. § 13.
    
    For other definitions, see Words and Phrases, vol. 2, p. 1332.]
    5. Rape (§ 52) — Evidence—Sufficiency.
    On a trial for rape of a female under the age of fifteen years, evidence held not to show a common-law marriage between the parties.
    [Ed. Note. — For other cases, see Rape, Dec. Dig. § 52.]
    6. Rape (§ 36) — Presumption.
    Where, on a trial for rape Of a female under the age of 15 years, accused relied on a common-law marriage with prosecutrix, the testimony of prosecutrix that she was not his wife, and that accused had stated that they would be married as soon as he could arrange for a marriage, rebutted the presumption, if any, of their consent to be married arising from their cohabitation following their engagement to marry at some future time.
    [Ed. Note. — For other cases, see Rape, Dec. Dig. § 36.]
    7. Rape (§ 17) — Defense—Marriage.
    Under Pen. Code 1895, arts. 967, 969, making it a felony for one by promise to marry to seduce an unmarried female under the age of 25 years, and that if the parties marry each other at any time before the conviction of accused or if accused in good faith offer to marry the female no prosecution shall take place, one on trial for rape of a female under the age of 15 years may not rely on the presumption of a common-law marriage arising from evidence of cohabitation following their engagement to marry at some future time.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 20; Dec. .Dig. § 17.]
    On Rehearing.
    8.Criminal Law (§ 1137) — Instructions— Objections.
    Where, on a trial for rape of a female under the' age of 15 years, the prosecutrix was referred to by a witness of accused and by accused’s counsel as “the little girl,” accused could not complain of a charge referring to her as “the little girl.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.]
    Appeal from District Court, Sabine County; W. B. Powell, Judge.
    Frank Wofford was convicted of crime, and he appeals.
    Affirmed.
    J. B. Lewis, A. D. Hamilton, and J. H. McGowan, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   LOVE, Special Judge.

Appellant was convicted upon a charge of rape, by having carnal knowledge of a female under the age of 15 years, and his punishment was fixed at 10 years’ confinement in the penitentiary.

The prosecutrix is one Dubby O’Connell, who on and prior to the 13th day of March, 1909, as the facts show, lived with her mother in Calcasieu parish, La. The evidence as to the age of prosecutrix is conflicting. The witness T. D. O’Connell testified that he was the father of prosecutrix, and had kept account of her age from year to year since her birth, and that she was just past 14 years of age on the 13th of March, 1909. The mother testified that, while she had lived and cohabited with said T. D. O’Connell for a number of years past, and had taught prosecutrix, as well as her two other children, to believe him to be their father and to regard and treat him as such and had given them his name, she ha.d in fact never been married to him, and he was not the father of prosecutrix or of any of her children, and' that prosecutrix was born on March 5, 1894, and consequently was just past 15 years of age on March 13, 1909. Prosecutrix testified that on said 13th day of March, 1909, she voluntarily, but under the persuasion of appellant, who the facts show was then- more than 39 years of age, left her home in Louisiana with him, under his representation that they would come to Texas and get married, and that her mother did not know of her departure. The mother testified that she knew of and assented to the departure of her daughter with appellant, and gave him a written order for a marriage li cense. Her testimony on this point being as-follows: “I went part of the way with them, when Prank Wofford left Louisiana with her. I certainly did consent for Prank Wofford to take this girl and she sure did consent to come. I give her up to Prank Wofford. I give him a written order and told him to get his license wherever he could. There was no way there to get a justice of the peace that X knew of. The defendant said he was going over to Texas for his license. X told him to go to Texas or anywhere he wanted. I wrote out a piece and give it to him and signed my name to it. * * * I sure heard her consent to come.” There is no other testimony of any kind in the record relative to the written order referred to by this witness, and she testifies that she is unable to read, and an affidavit made by her before a notary public in Louisiana, which was introduced in evidence, shows that it was signed by her with her mark, indicating that she could not write. The facts show that when appellant and prosecutrix left her home on Saturday, March 13th, they walked several miles, crossing the state line into Texas, and that they spent that night at a boarding or section house in Texas, occupying the same bed. The next day, Sunday March 14th, they traveled on foot and by rail together to the house of one „John McGowan, a relative of appellant, located two miles west of Bronson in Sabine county, Tex., where he introduced prosecu-trix as his wife to McGowan and his wife, and where they spent that night, both occupying the same bed. They also spent the following night at McGowan’s house, both again occupying the same bed, and on this night prosecutrix testified that appellant had sexual intercourse with her. They spent the night of the following day, Tuesday March ICth, at the home of Ed Horton, an acquaintance of appellant, located four miles west of Bronson, where appellant again introduced prosecutrix as his wife to Horton and his wife and daughter, and where again they occupied the same bed, and prosecutrix testified that on this night appellant again had sexual intercourse with her. On the night of the following day, Wednesday March 17th, appellant was arrested on this charge, at the home of Horton, after he had retired, and while he and prosecutrix were occupying the same bed. Dr. W. T. Arnold, a physician, testified that upon a physical examination of the person of prosecutrix, made about the last days of March, 1909, he found evidences that she had had sexual intercourse. N. O. Log-gins, a witness for the defense, who had known appellant a number of years and who saw him just prior to his arrest of Wednesday March 17, 1909, at a sawmill in San Augustine county, testified as follows: “The defendant at that time asked me to go to San Augustine and get him license for him to marry a young woman. I agreed to do it; that is, I agreed to go on the Saturday following. He told me where the young woman was. He said that she was at Ed Horton’s. He told me what her name was. He did not tell me that they were passing as man and! wife then.” There is no reference in the testimony of this witness to any written order or other paper signed by the mother of prose-cutrix. This is believed to be a sufficient statement of the case to afford a basis for discussion of the questions raised.

1. While prosecutrix was testifying in the ease as a witness for the state, the district attorney asked her the following question:. “Did any other man except the defendant ever have carnal intercourse with you?” to-which she replied, “No, sir.” This question, was asked and answered without any objection being interposed by appellant’s counsel,, though they immediately thereafter, moved; the court to strike both the question and answer from the record, and to instruct the jury not to consider the same, and offered, if the court so desired, to produce authorities showing the inadmissibility of the testimony. Appellant contends that reversible error was committed by the trial court with respect to-its treatment of this testimony, which is. claimed to be inadmissible on various grounds. The trial judge, in his explanation of the bill of exceptions upon this point, which was accepted by appellant, and therefore binding as-to .its recitals, upon him as well as upon this court, says: “The question was asked and answered without objection, and then the-court was asked to exclude it, and the ruling was withheld for authority on the subject, and when the authorities were produced, the question and answer was withdrawn from the jury, although it had gone in without objections.” In view of this statement, we think that it is unnecessary to consider the question of the admissibility of the testimony referred to, as no error was committed, whether it was admissible or inadmissible. The-record shows that after it had been admitted-without objection, it was held inadmissible,, and the jury instructed to disregard it; every request of appellant respecting it being fully and reasonably complied with by the trial court.

2. When the motion was made by appellant’s counsel that the question which was. propounded by the district attorney to prose-cutrix, and her answer thereto, as hereinbe-fore referred to, be stricken from the record, and that the jury be instructed to disregard the same, the record shows that the trial judge made, in the presence and hearing of the jury, the following statement: “I do not know what the law is on that point, but I think it ought to be the law, that whether- or not the alleged injured party has had carnal intercourse with other men in cases like-this ought to be admitted in evidence by way of mitigation or aggravation of the crime and the punishment. The question may not be admissible under the law, but it ought to be. It is in now. Produce your authorities and if that is the law, I will strike it out later.”

The bill of exceptions covering this point,, immediately after a quotation of the remarks-of the judge, recites as follows: “These authorities were produced later, and 30 hours after said testimony was admitted the jury were instructed not to consider the same, to all of which remarks and actions of the court defendant then and there objected and excepted, etc.” From this recital it does not clearly appear whether the objections to the remarks of the court were made at the time the remarks were made, or 30 hours thereafter, at the time the court excluded the testimony complained of from the consideration of the jury, and it nowhere appears in the record that appellant’s counsel at any time moved or requested the court to instruct the jury to disregard the remarks complained of.

Appellant assigns error upon these remarks of the trial judge upon the ground that they constituted a charge or comment upon the weight or value of the testimony and an expression of the opinion of the court as to the guilt or innocence of the accused. We do not so construe the remarks complained of. At most, they amounted only to a comment or expression of opinion as to the admissibility, as a matter of law, of a class of testimony in a class of cases, and the purpose for or grounds upon which such testimony might be admissible in such cases. The court expressly stated that “the question (which had already been asked and answered without objection) may not be admissible under the law, but it ought to be. It is in now. Produce your authorities and if that is the law, I will strike it out later.” Authorities were produced and the evidence complained of was stricken out and the jury instructed to disregard it. In the light of the record, we are not of the opinion that the remarks complained of constitute reversible error.

3. Appellant assigns as error the refusal of the trial court to submit to the jury the issue as to whether or not prosecutrix was his wife at the time of the alleged rape, under the facts of the case, by virtue of a common-law marriage. This phase of the case has been presented and argued with marked ingenuity and ability by appellant’s counsel in brief and oral argument, and we think it proper in our discussion of it to collate and present all the testimony to be found in the record which can possibly be conceived to tend to prove or to remotely suggest a common-law marriage between prosecutrix and appellant.

Prosecutrix, who must have known better than any other witness, any facts tending to establish a common-law marriage, testified as follows: “I was not the wife of Mr. Wof-ford, nor I never have been his wife, and I am not his wife now. Frank Wofford persuaded me off. I did not want to come, but he got me to come. He told me he would marry me if I would come, and he never done it. * * * I was dissatisfied with being with Frank Wofford before he was arrested. I wanted all the time to get back home. * * * Frank Wofford did not tell me at any time from the time I left Louisiana until I got to Texas when we would be married. I-Ie said that we would be married as soon as he could arrange for the marriage. * * * When we got to John McGowan’s, Frank Wofford introduced me as his wife to old man John McGowan. I objected to that. I did not say anything, only I shook hands with John McGowan. I didn’t object to it in John McGowan’s presence. I never told John McGowan I wasn’t his wife, nor I didn’t tell any one I wasn’t his wife. He introduced me to them as his wife. I didn’t tell any one any different when. I stayed there that night. I don’t know whether Frank told Mr. Horton I was his wife or not. I think I told Mr. Horton’s wife that I was his wife. I didn’t tell them any different. Don’t remember of tellihg them any different. I don’t think that I did. * * * I didn’t tell any of the three persons (Horton or his wife or daughter) that I wasn’t Frank’s wife. I was passing as his wife then. I was still at that time, expecting Frank to marry me. * * * When we got to Mr. McGowan’s, he introduced me as his wife and the same way at Mr. Horton’s. * * * He told them I was his wife and I didn’t raise any objection to it.” J. F. McGowan testified that appellant and prose-cutrix spent two nights at his house, being the Sunday night and Monday night prior to appellant’s arrest, that he introduced her to him as his wife and that they both occupied the same bed, and said, “and she did not tell me or any one else that I know of that she was not his wife.” Ed Horton, after testifying that appellant met him in the road near his house on Tuesday prior to his arrest on Wednesday, further testified as follows: “He had a girl with him at the time and told me she was his wife. * * * He did not, nor the girl did not, tell me any different from that before he was arrested.” Mrs. Ed Horton testified as follows: “He had a little girl with him and he said it was his wife. She said that she never saw any one married in her life, and did- not know whether they were married or not. She said that Frank told her they were married. I understood from her statement and his statement that they were married.”

The testimony of the mother of prosecu-trix and of the witness N. 0. Loggins, which is quoted elsewhere in this opinion, taken together with that of prosecutrix and of the witnesses, McGowan, Horton, and Mrs. Horton, here quoted, constitute all the testimony contained in the record which could possibly be held to affect the question of a common-law marriage. It must be held that that issue is raised by these facts, if it is in the case. The primary, essential element of a common-law marriage contract, as recognized by the courts of this state, is a mutual “agreement of the man and the woman to become then and thenceforth husband and wife.” See Simmons v. Simmons (Civ. App.) 39 S. W. 639-641, and cases therein cited. We are of the opinion that the record in this case fails utterly to disclose any evidence tending to show such an agreement. It is contended by appellant that under the law the evidence showing cohabitation between a man and a woman, following their agreement or engagement to marry at some future time, raises a presumption of their consent to become husband and wife, and the courts have held in some civil cases in this state that such a presumption is so raised, in the absence of any rebutting testimony. We think that any such presumption in this case was conclusively rebutted by the testimony of the very witness by whom the cohabitation was proven, but if this were not the case, we are of the opinion that such a presumption cannot avail the defendant upon trial on a criminal charge in a case of this character, in view of the provisions of the Penal Code, which make it a felony for a person “by promise to marry” to seduce and have carnal knowledge of an unmarried female under the age of 25 years, and which further provide that in such case “if the parties marry each other at any time before the conviction of the defendant, or if the defendant in good faith offer to marry the female so seduced, no prosecution shall take place, or, if begun, it shall be dismissed,” etc. gee articles 967, 968, and 969, Pen. Code 1895. As we read this record the facts upon which appellant relies to raise in his favor a presumption of his marriage to prosecutrix would, if she had been over the age of 15 years, have supported his conviction of seduction, which the law provides could only have been avoided by his marriage to her.

We are of the opinion that the trial court correctly refused to submit to the jury the issue of common-law marriage in this case, as we do not believe that issue is raised by the facts. To hold otherwise would be to put the sacred badge of matrimony upon any wicked liaison induced by a promise to marry, and to scandalize the cherished sanctity, innocence, and honor of the marriage vows.

We have considered the other assignments of error presented and are of the opinion that none of them warrant a reversal of the case.-

The conflict in the testimony as to the age of the prosecutrix was decided by the jury adversely to appellant, and the elimination of this issue would seem to leave no doubt of appellant’s guilt under the law, as applied to the undisputed facts.

The judgment is affirmed.

DAVIDSON, P. J., and RAMSEY, J., concur.

On Motion.for Rehearing.

DOVE, Special Judge.

In appellant’s motion for rehearing, considerable stress is laid upon the fact that in the opinion heretofore rendered affirming this case the assignment of error upon the portion of the trial court’s charge, in which he referred to the prosecu-trix as “the little girl,” was not treated or discussed. In our opinion, this language in the court’s charge would not in any event constitute reversible error in this case, for the reason that the record discloses that at least one witness placed upon the stand by the defendant referred to the prosecutrix as “the little girl,” and that she was also referred to as “the little girl” by appellant’s attorney in questions propounded by him in the examination of witnesses in the presence of the jury. We therefore think that appellant cannot complain of this language of the court as error in this case, and we deem it unnecessary to discuss the other matters presented by the motion for rehearing in view of our former opinion affirming the ease.

The motion for rehearing is overruled.  