The case as made by the state is: The defendant lived with a woman whose maiden name was Harvey for some eight years, and claimed to be husband and wife, and then separated and remained separated for two years and eight months, after which the defendant contracted a ceremonial marriage with Mattie Lou Davis, and lived with her some six weeks. The sole and only witness to the first alleged marriage was a man named Fuqua, a brother of defendant, whose testimony concretely stated:
"When I say they married, I mean they lived together for some eight years and claimed to be husband and wife, and then they separated."
The first woman was living at the time of the ceremonial marriage to Mattie Lou. At the conclusion of the evidence, the court ex mero motu said:
"I will also exclude the testimony of the witness Fuqua that this defendant and Gussie Harvey were married."
This left the testimony of Fuqua to the effect that defendant and Gussie had lived together for a period of eight years, claiming to be husband and wife, had children borne to them, and then separated. The burden was on the state to prove the first marriage beyond a reasonable doubt, and this question was submitted to the jury upon the theory and under a charge that the evidence was sufficient, if believed beyond a reasonable doubt to establish this first relationship as a common-law marriage.
In this state marriage is a solemn contract entered into between parties authorized to contract in that regard, that they will live together in a state of matrimony, assuming all the obligations fixed and required by law for such a state. And while such contracts are not loosely to be assumed, and the practice in this commonwealth is to surround the marriage contract with the most solemn ceremonies of both church and state, this state has, and still does, recognize as valid and binding what is known and called a common-law marriage; that is, where it is made to appear by the evidence that the parties entered into a mutual agreement to live as man and wife, provided the parties are capable of making such contract. White v. Hill, 176 Ala. 480, 58 So. 444; Wall v. Williams, 11 Ala. 826.
In some cases it is held that, before an agreement such as is hereinabove described can become a valid marriage, it must appear from the evidence that the parties were qualified under the law to contract marriage. White v. Hill, supra. But, where the celebration of the marriage was by legal ceremony, the contract of marriage, the capacity of the parties, and every other fact necessary to its validity will be presumed until the contrary is shown. 3 R. C. L. p. 609, par. 24. And a common-law marriage may be proven by reputation, combined with the birth of children, living together, and admissions before the world of the marriage state. Dumas v. State, 14 Tex. App. 464, 46 Am.Rep. 241; Bynon v. State, 117 Ala. 80, 23 So. 640, 67 Am. St. Rep. 163; 3 R. C. L. p. 809, par. 23.
It is insisted that: *Page 249
"When the same evidence that showed the set of circumstances authorizing a finding by the jury that a former marriage had been contracted so as to be binding as a common-law marriage also disclosed that the parties separated and the cause of the separation was not disclosed or explained, and that the defendant subsequently contracted a ceremonial marriage, that this latter fact, as a matter of law, destroyed the presumption or inference arising from the facts from which otherwise a common-law marriage might be inferred."
By a long line of decisions, beginning with Beggs v. State,55 Ala. 108, this state has recognized common-law marriages, notwithstanding the several statutes placing restrictions upon ceremonial marriages. To constitute such a marriage, it is only necessary that there shall exist a mutual consent or agreement between the parties to be husband and wife, followed by cohabitation and living together as husband and wife. Tartt v. Negus, 127 Ala. 308, 28 So. 713; Herd v. Herd, 194 Ala. 613,69 So. 885, L.R.A. 1916B, 1243.
A common-law marriage may be proven by facts and circumstances tending to prove an agreement to live together as husband and wife, followed by cohabitation, and, when established, the status becomes fixed and the marriage is valid, as if the same had been ceremonially entered into. Farley v. Farley, 94 Ala. 501, 10 So. 646, 33 Am. St. Rep. 141. But where the facts tending to prove the common-law marriage also show a subsequent permanent separation, without apparent cause, and the marriage of one of the parties soon after, by a ceremonial marriage, it seems to be the law supported by the decisions that the presumption of an actual marriage from continued cohabitation, etc., is rebutted by the fact of a subsequent permanent separation, without apparent cause and the ceremonial marriage soon after of one of the parties. The foregoing finds support in Weatherford v. Weatherford, 20 Ala. 548, 56 Am. Dec. 206, Moore v. Heineke, 119 Ala. 627,24 So. 374, McLaughlin v. McLaughlin, 201 Ala. 483, 78 So. 388, and many other authorities from other states. But the proposition that, because the presumption arising from such facts is rebutted, the evidence of these facts is no longer entitled to any consideration, and must be withdrawn from the jury, cannot be sustained. Even though the presumption be withdrawn, the facts and circumstances are still in evidence tending to establish a marriage contract, and from which the jury is authorized to find, either that a marriage ceremony had been in fact performed, or that the parties had agreed to a common-law marriage contract. The foregoing is upheld by the opinion in Moore v. Heineke, 119 Ala. 627, 637, 24 So. 374.
We have carefully read the case of Young v. Woodward Iron Co., 211 Ala. 508, 101 So. 51, and the other authorities cited in appellant's brief. We are frank to say that some of these seem to be at variance with the above, but we are not willing to hold with them that the defendant by his own act can destroy the evidential value of facts tending to fix a status. The opinion in the case of McLaughlin v. McLaughlin, 201 Ala. 482,78 So. 388, contains some expressions which seem to be at variance with holdings herein that the opinion quotes with approval an excerpt from the opinion in Moore v. Heineke,119 Ala. 627, 24 So. 374, and omits that part of the opinion which holds that, notwithstanding the legal presumptions, the question yet remains for the jury. It may be that these two opinions can be reconciled, or at least limited so as to remove the apparent conflict. See, also, Langtry v. State, 30 Ala. 536; Bynon v. State, 117 Ala. 80, 23 So. 640, 67 Am. St. Rep. 163; Parker v. State, 77 Ala. 47, 54 Am. Rep. 43; Williams v. State, 151 Ala. 108, 44 So. 57. Especial attention is directed to the opinion in Williams v. State, 151 Ala. 108, 111, 112,44 So. 57, where the court said:
"It was also held in that case [Moore v. Heineke] that the presumption of an actual former marriage, arising from the fact, of continual cohabitation, etc., is rebutted by the fact of a subsequent permanent separation, without apparent cause, and the actual marriage, soon after of one of the parties. But it was further said: 'Notwithstanding such evidence has been deprived of any aid from the presumption, it is still evidence tending to show, and from which the jury may infer, if it be sufficiently strong and satisfactory, either an actual ceremonial marriage, or an actual consent or agreement to be man and wife, which, when followed by cohabitation, may constitute a valid common-law marriage. * * * This court has many times held that in criminal prosecutions for bigamy — an offense of which an actual second marriage is an essential ingredient, and where every legal presumption of the innocence of the accused in contradicting the second marriage is indulged — the first marriage may be proved by evidence of the former cohabitation of the accused with a third person, and of his declarations.' "
Where there is evidence sufficient to warrant the jury in its findings that there was a common-law marriage, and they so find from the evidence, a valid marriage is established, and it then becomes necessary for the defendant to introduce evidence which from the whole testimony will create a reasonable doubt of the validity of such first marriage. It is not necessary in such a case to go farther and show that the parties were competent to contract. 3 R. C. L. p. 810, note 11.
Even if Act 1919, p. 169, has the effect of changing the rule as to common-law marriages in this state, that fact cannot avail the defendant. The status of marriage between defendant and Gussie Harvey became fixed before the enactment of this statute. Moreover, *Page 250 we do not think this statute changes the rule as to common-law marriages. Whatever ought to have been the rule, we have now gone too far to turn back. Too many marital and property rights rest upon the decisions holding common-law marriages to be valid.
Refused charge 8 is elliptical.
Refused charge 7 is misleading, and was properly refused.
I think the judgment should be affirmed.