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 that she was entitled to. Again *Page 495 we think appellant in error in her 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 Hays unquestionably, but under the authority of Grigsby 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.
Overruled.