17 Ga. App. 263 | Ga. Ct. App. | 1915
Dissenting Opinion
dissenting. There was acute conflict as to whether the relation existing between the defendant and the prosecutrix was a wedlock or concubinage. If the relation was one of mere concubinage, the
Rehearing
ON MOTION ROE REHEARING.
Under the evidence and the defendant’s statement at the trial, the verdict rendered was demanded. When all the undisputed facts in this case are considered, to wit, the living together of the prosecutrix and the accused as man and wife for four years, in fourteen or fifteen different States of the Union; the introduction of the woman (the prosecutrix) by the defendant to his father, brothers, and sisters as his wife; her living with the defendant as his wife amongst his family, in the same house, for many months; his many letters, introduced in evidence, and written to her during a period of several years, the envelopes of which were addressed to her as “Mrs. A. B. Wynne” (his name), and beginning, “My dear wife,” and signed, “Your loving husband;” the admission of the defendant in his statement that he addressed the prosecutrix as his wife, and took her into his family as such; the fact that the defendant, in his statement at the trial, did not deny that he and the prosecutrix, before their cohabitation, had made a mutual agreement to live together as husband and wife, and did not deny that the child in question was his own; his failure to deny any of the above-stated facts, except his mere general statement that “there is no marriage and she can’t find any; she says that the marriage taken place in Cincinnati, yet she writes
Rehearing denied.
Lead Opinion
1. By the common law and the law of this State, a mutual agreement to be hufeband and wife, by parties able to contract, followed by cohabitation, is recognized as a valid marriage. Askew v. Dupree, 30 Ga. 173; Dilloñ v. Dillon, 60 Ga. 204, 209; Clark v. Cassidy, 64 Ga. 662; Smith v. Smith, 84 Ga. 440 (11 S. E. 496, 8 L. R. A. 362); Dale v. State, 88 Ga. 552 (15 S. E. 287); Southern Railway Co. v. Brown, 126 Ga. 1, 2 (54 S. E. 911); Drawdy v. Hesters, 130 Ga. 161, 168 (60 S. E. 451, 15 L. R. A. (N. S.) 190); Oliver v. State, 7 Ga. App. 695, 697 (67 S. E. 886).
2. The accused was indicted for the abandonment of his minor child, and his only defense was that he had never been legally married to the mother of the child, and that, under the law, he could not be convicted for the abandonment of an illegitimate child. There was sufficient evidence to authorize the jury to find that there had been a legal ceremonial marriage between the accused and the prosecutrix, but this finding was not demanded by the evidence. However, the evidence, taken as a whole, and including the defendant’s statement, demanded a finding that there had at least been a valid common-law marriage between these parties, and that the abandoned child was the legitimate offspring of this union. This being trae, the conviction of the accused was demanded by the evidence; and consequently, if there were any errors in the charge of the court, they do not require the grant of a new trial.
Judgment affirmed.