Appellant has filed his motion for rehearing in this case, in which he strenuously urges two questions for our consideration; the first question being that the evidence does not sufficiently support the verdict, and does not measure up to the law's requirements in regard to a common-law marriage.
In addition to upholding what has been said heretofore in this regard by this Court in its opinion, we desire to add thereto the following:
The statement of facts discloses that a witness testified that appellant left home some time in December, of 1909, with the woman alleged in this case to be his first and living wife, and that soon after leaving home, appellant wrote back that he and said woman, Ellen Ingall, known in this record as Ellen Ahlberg, were married. Said witness further testified, as did a number of others, that some time during the same month, appellant and said woman returned and called each other husband and wife, appellant introducing said woman as his wife, and thereafter for many years lived with her, all the time giving out that she was his wife, and that her daughter was their child. People with whom appellant traded, and who were well acquainted with him and his first wife, Ellen, and who lived in their immediate neighborhood, and the doctor who waited on said wife during confinement, all joined in testifying to the relation of appellant and said woman, accompanied by his declarations throughout *Page 178 a period of approximately ten years. The only witness who denied the fact of appellant having married said woman with all the formalities prescribed by statute, was appellant himself, who testified as a witness in his own behalf, that he never had married said woman at any time.
The trial court, in his charge to the jury, defined what constituted a statutory marriage in this State, and also what constituted a common-law marriage, and then proceeded to instruct them that if they found from the evidence that appellant, having a lawful wife then living, did marry Audrey Clark, they should find him guilty of bigamy.
We have carefully gone over the entire record, and think the evidence entirely sufficient to support the judgment, irrespective of the question of a common-law marriage.
The admission of the appellant that he was married prior to the alleged bigamous marriage, is competent evidence against him. Gorman v. State, 23 Texas Rep., 646; Bell v. State,33 Tex. Crim. 163; Bryan v. State, 63 Tex.Crim. Rep..
It has also been held in this State that a former marriage may be proven by general repute, taken in connection with evidence of cohabitation and the admissions of the accused. Adkisson v. State, 34 Tex.Crim. Rep.; Dumas v. State, 14 Texas Crim. App., 464.
This Court, in Johnson v. State, 150 S.W. Rep., 936, cites approvingly the Dumas case, supra, holding that the confession of accused, together with evidence of cohabitation and other circumstances, will sustain a conviction for bigamy, and such is our opinion. The production of the license for the first marriage is not indispensable, nor is it necessary to produce witnesses who were present at such marriage. Nance v. State, 17 Texas Crim. App., 389; Morville v. State, 63 Tex.Crim. Rep..
It is apparent from the record that appellant and Ellen Ingall went away from the neighborhood in which they lived, in December, 1909, and that he wrote back soon after they left that he and Ellen were married, that when he came back he took her to his home as his wife; that for a number of years he introduced her as such, and called her children his; and in every other way acted toward her in entire corroboration and cognizance with and of the statement contained in his written communication that they were married. We think this justified the jury in concluding that the parties were legally married; and we further observe that the other matters in the court's charge, in reference to a common-law marriage, which are complained of, at most were wholly harmless.
Complaint is also made in this motion that while appellant was on the stand testifying, the prosecuting attorney asked him if he had not been warned by a certain neighbor that his course of conduct would likely get him into the penitentiary? This question was objected to, and during the course of a discussion with the prosecuting *Page 179 attorney, who was urging its admissibility, the court remarked that it occurred to him that the proposition involved the giving of advice by a third party, by which the appellant was not bound in any way, and the prosecuting attorney replied that he did not seek to bind the appellant by the advice. The court sustained the objection and the question was not answered. It is only claimed in support of the matters complained of in bills of exception numbers 3 and 4, which set out appellant's proposition in regard to the above matters, that the question of the county attorney was necessarily harmful to the appellant. We do not think so, and in view of the fact that the trial court sustained the objection, we are unable to perceive any ground for reversal of this case because of such matter. We do not think the court's remark to the prosecuting attorney constituted a comment on the weight of the evidence, or was of such character as could injure the appellant. We have found nothing in this motion which leads us to conclude that the former opinion of this court was in any wise incorrect, and said motion is overruled.
Overruled.