
    CROSSETT v. STATE.
    (No. 7211.)
    (Court of Criminal Appeals of Texas.
    Oct. 3, 1923.
    Rehearing Denied March 26, 1924.)
    I.Seduction <@=42 — Evidence of female's social activities held proper on issue of actual ohastity.
    In prosecution for seduction, where the injured female was dead at time of trial, the fact that she resided with her parents, attended and took part in church and school affairs, and interested herself in society was properly received on the issue of her actual chastity.
    2. Criminal law <@=677 — Circumstantial evidence not required to be withdrawn on defendant’s subsequent admission of the facts.
    In prosecution for seduction, where evidence was admitted that defendant cohabited with prosecutrix at a hotel, occupied the same room with her for a week, and claimed she was his wife, and that an operation for abortion revealed her pregnancy, such circumstantial evidence, tending to prove defendant’s intercourse with her, was not required to be withdrawn on defendant’s subsequent admission that he caused the pregnancy.
    3. Criminal law <@=723 (I) — State’s attorney’s argument held not to transcend rules.
    In prosecution for seduction, the scope of legitimate argument helé not transcended by State’s counsel’s argument suggesting to the jury unpleasant consequences in facing their wives and children should they acquit defendant, declaring that he had disgraced his army uniform, and referring to the prosecutrix as having lived and died for him; such comment being based on the facts in the record.
    4. Seduction <@==>50(I) — -Refusal to instruct on theory of common-law marriage held not error.
    In prosecution for seduction, evidence helé not to establish a common-law marriage between defendant and prosecutrix, so as to make it error for the court to refuse an instruction on the theory of such a marriage.
    5. Seduction <@=>36 — Marriage of parties bars prosecution.
    Marriage of the parties operates to bar prosecution, in view of Vernon’s Crim. Stat. art. 1449.
    6. Marriage <@=20(2) — “Common-law marriage” defined.
    A “commonrlaw marriage” is one in which there is an agreement to become husband and wife immediately from the time of giving of the mutual consent.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Common-Law Marriage.]
    7. Marriage <@=40(4) — Illicit cohabitation presumed to remain illicit until contrary proved.
    Cohabitation between a man and woman, illicit- in its inception and so understood by them, is presumed to continue illicit until proof is made of a change to a matrimonial cohabitation.
    8. Marriage <@=51 — Instruction, as matter of iaw, against finding common-law marriage held proper.
    In prosecution for seduction, an instruction as a matter of law that there was nothing in the evidence which would warrant the jury in finding a common-law marriage between defendant and prosecutrix helé proper.
    <@=lTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge. <
    
      Hodgen Crossett was convicted of seduction, and tie appeals.
    Affirmed.
    <3-. E. Lockhart, of Tahoka, McLean, Scott & McLean and Sam R. Sayers, all of Fort Worth, for appellant. •
    R. 6. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is seduction; punishment fixgd at confinement in the penitentiary for a period of 5 years.

The.injured female was dead at the time of the trial. Appellant’s theory, supported by his testimony, was that she yielded her virtue without the promise of marriage, and in much detail, he revealed instances of their association both antecedent to and at the time the sexual relations began. This testimony would apparently invite an inquiry into the character of the injured party, and upon that issue her environments and the nature of her associations would seem to be a proper inquiry.

The fact that Rosa Stuart resided with her parents, that she attended and took part in church and school affairs, and interested herself in society, was properly received on the issue of her actual chastity. Underhill on Crim. Ev. (3d Ed.) § 592, p. 830; Ruling Case Law, vol. 24, p. 776, § 60; In re. Vandiveer, 4 Cal. App. 650, 88 Pac. 993; People v. Roderigas, 49 Cal. 9; Nolan v. State, 48 Tex. Cr. R. 436, 88 S. W. 242; Mrous v. State, 31 Tex. Cr. R. 597, 21 S. W. 764, 37 Am. St. Rep. 834; Jeter v. State, 52 Tex. Cr. R. 212, 106 S. W. 371; 14 L. R. A. (N. S.) 727, notes.

The fact that Rosa Stuart was pregnant was proved without objection. The bill complaining of proof that an operation was performed on her does not reveal any surrounding circumstances but assails.the evidence on the ground that it offended against the rule forbidding the unnecessary introduction of details of collateral transactions. The bill goes no further than that an operation was performed; no details are stated. The relevancy of the testimony is not made apparent, nor its harmful effect perceived.

In another bill complaint is made of the refusal of the court to exclude from the jury the testimony of various witnesses touching the occurrences at the Hancock Hotel and Seton Infirmary, “because the only purpose for which such testimony could have been admitted originally was for the purpose of proving circumstantially that the defendant had intercourse with the alleged injured party, Rosa Stuart, in that, since the defendant took the stand and admitted such acts of intercourse, such circumstances have been superseded by the admissions of the defendant.” The bill fails to reveal what took place at the places mentioned, and for- that reason is incomplete. Looking to the evidence, however, it appears that appellant cohabited with the prosecutrix at the Hancock Hotel and occupied the same room with her and claimed that she was his wife, and the operation for abortion performed at the Seton Infirmary revealed the pregnancy of the girl. The admissibility of this testimony at the time it was received seems conceded, but it is contended that, by reason of a subsequent statement of appellant in his testimony that he had caused the pregnancy, it was incuumbent upon the court to withdraw the circumstantial evidence previously received tending to prove the same fact.. The evidence being legitimately before the jury, no rule of law of which we are cognizant required its withdrawal, because other evidence was introduced proving the same fact.

In several bills of exception complaint is made of the remarks of state’s counsel in argument. One of them said to the jury;

“If you believe the defendant’s testimony, turn him loose. Then go home and try to face your wives and your virtuous children, if you have any.”

Another referred to the fact that appellant had worn the uniform of the army, and that, upon coming home, he had disgraced and prostituted it. Appellant put in evidence the fact that he wore his uniform, that he was a soldier, and that he had gone to the army.

Still another said of the injured female:

“She lived for him; she gave herself to him, she made his defense for him, and then she died for him.”

Nothing in the bills reveals the connections with which the arguments were made, and we fail to comprehend in what respects they transcend the scope of legitimate argument to a degree that would justify a reversal of the judgment. All of them appear to have been comments of the attorneys upon the facts in the record. Appellant’s testimony showed that the devotion of the girl to him was unusual.

After the relations of Rosa Stuart and appellant had resulted in her pregnancy of several months’ duration, and after various efforts to bring about an abortion, in the course of which letters on the subject were exchanged by them, they went to a hotel in the city of Austin and were registered by the appellant as husband and wife. The keeper of the hotel was informed by appellant that they were married. They 'remained at the hotel for about a week, occupying the same room, and, according to his testimony, held themselves out as man and wife. During that time appellant was engaged in an unsuccessful effort to induce a physician to produce an abortion. Relative to what followed, appellant, in his testimony, said:

“I told her we had better marry, and she said she didn’t think that would do any good now, since she was that far along; she would be disgraced anyway, and she couldn’t bear for any one to know we had those relations before we were married. * * * I wanted to marry her at that time, as soon as I couldn’t get anything done for her.”

According to his testimony, she suggested that she might be able to arrange for an abortion. Again quoting him, he said:

“Our plans were that later on, if this could be avoided, if a child was not born, we would be married. We would thereafter get married as we had originally planned.”

Appellant contends that upon the evidence it was incumbent on the court to instruct the jury on the theory of common-law marriage, and complains of the refusal of a special charge embracing that view. The marriage of the parties would operate to bar the prosecution. Eledge v. State, 50 Tex. Cr. R. 223, 96 S. W. 39; Vernon’s Texas Crim. Stat. vol. 1, p. 938, art. 1449, and notes thereunder; Ruling Case Law, vol. 24, p. 770, | 52. Whether a common-law marriage would suffice to obliterate the offense of seduction, or, in other words, whether a promise of marriage would he fulfilled by a commón-law marriage is, so far as we are aware, a novel question. Its answer does fiot seem necessary in the instant case, for the reason that the evidence relied upon to establish a common-law marriage does not fill the measure required hy law. It seems obvious from the only testimony upon the subject that the relations they had formed and under which they were living during the week that they were at the hotel together was not by them contemplated or regarded as being in compliance with the previous agreement to marry, but was simply, an expediency pending the time when matters would so shape themselves as to render the marriage practicable. The marriage which they had in mind obviously was not á common-law marriage but a marriage celebrated in the manner contemplated by law. See R. S. art. 4610. A common-law marriage is one in which there is an agreement to become husband and wife immediately from the time of the giving of the mutual consent. In 18 R. C. L. p. 392, § 13, it is said:

“As there can be no contract per verba de prmsenti where the marital status is to become fixed in the future, it is not sufficient to agree to present cohabitation and a future regular marriage when more convenient, or when a wife dieSj or when a ceremony can be performed.”

See, also, Simon v. State, 31 Tex. Cr. R. 202, 20 S. W. 399, 716, 37 Am. St. Rep. 802; Michie’s Digest of Tex. Rep. (Civil Cases), vol. 12, p. 184; Chapman v. Chapman, 88 Tex. 641, 32 S. W. 871; Ahlberg v. State, 88 Tex. Cr. R. 173, 225 S. W. 253.

A reasonable and to our mind a sound rule touching common-law marriages is that the cohabitation between a man and woman, illicit in its inception and so understood by them, is presumed to continue illicit until proof is made of a change to a matrimonial cohabitation. A matrimonial cohabitation is the living together of a man and woman' ostensibly as husbafid and wife.

“Cohabitation consists of a living or dwelling together in the same habitation as husband and wife, and not merely sojourning, visiting, or remaining together for a time. Sexual intimacy or illicit living together is not enough.”

See Lee v. State, 44 Tex. Cr. R. 354, 72 S. W. 1005, 61 L. R. A. 904; Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284; Klipfel v. Klipfel, 124 Am. St. Rep., note p. 113. Where the connection between the parties is shown to have been illicit in its origin, or criminal in its nature, the law raises from it no presumption of marriage. 2 Kent, 87; Greenleaf on Evidence, § 464; see Bishop on Marriage, Divorce and Separation, § 262.

In holding, as a matter of law that there was nothing in the evidence which would warrant the jury in finding that appellant and Rosa Stuart became husband and wife, the learned judge who tried the case was, in our opinion, not in error.

Railing to discover in the record any legal ground for its reversal, the judgment is affirmed.

On Rehearing.

HAWKINS, J.

We have carefully examined appellant’s motion for rehearing and his brief and argument filed in connection therewith. All the matters suggested, were most carefully considered upon original submission because of the unusual features of the case. Our views as expressed in the former opinion remain unchanged.

Believing the case to have been correctly decided, the' motion for rehearing is overruled.  