ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.In his motion for rehearing appellant urges that Art. 714 C. C. P. was violated in the cross examination of his wife. The part of said article here involved reads as follows: “The husband and wife may, in all criminal actions, be witnesses for each other; but they shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.” Appellant called his. wife as a witness. He made no objection to the cross examination, nor any motion to withdraw the evidence he now - regards as objectionable; notwithstanding which, he urges that in view of the statute quoted it was not necessary to either object or move to have the evidence withdrawn. The question was settled against appellant’s contention in Ward v. State, 70 Tex. Cr. R. 393, 159 S. W. 272, decided in 1913, and said case has been consistently followed since that time. Willingham v. State, 94 Tex. Cr. R. 596, 252 S. W. 530, decided in 1923, dealt with the same question, and later in Cole v. State, 119 Tex. Cr. R. 1, 44 S. W. (2d) 722, we said:
“As supporting his proposition, appellant cites us to Brock v. State, 44 Tex. Cr. R. 335, 71 S. W. 20, 60 L. R. A. 465, 100 Am. St. Rep., 859; Woodall v. State, 58 Tex. Cr. R. 513, 126 *598S. W. 591; Johnson v. State, 66 Tex. Cr. R. 586, 148 S. W. 328; Eads v. State, 74 Tex. Cr. R. 628, 170 S. W. 145; Davis v. State, 45 Tex. Cr. R. 292, 77 S. W. 451,452. It will be found that in most of the cases referred to the State called accused’s wife as a witness. If expressions are found in the opinions which indicate that appellant may take advantage of the cross examination of his wife when he himself has called her as a witness without interposing objection at the time of such cross examination, such expressions are not in line "with the holdings of this court since the opinion in Ward v. State, 70 Tex. Cr. R. 393, 159 S. W. 272.
“We quote from Willingham v. State, 94 Tex. Cr. R. 596, 252 S. W. 530, as follows ‘That part of the Brock case permitting the accused to introduce his wife in evidence, to remain silent during her cross examination, and to secure a reversal of the case in the event any part of the cross examination impinges upon the rule forbidding the use of the wife as a witness- against the husband, was discarded by this court in an undivided opinion in Ward’s Case, 70 Tex. Cr. R. 393 (see page 407) 159 S. W. 272. That part of the Brock Case which affirms the duty of the court to protect the accused against improper cross-examination of his ■ wife has been sustained, but only on condition that he interpose an objection at the time. See Bennett v. State, 80 Tex. Cr. R. 652, 194 S. W. 145, 149; Norwood v. State, 80 Tex. Cr. R. 552, 192 S. W. 249; Roberts v. State, 74 Tex. Cr. R. 150, 168 S. W. 101 (see page 111) ; Eads v. State, 74 Tex. Cr. R. 628, 170 S. W. 145; Villafranco v. State, 84 Tex. Cr. R. 195, 206 S. W. 357; Lovett v. State, 87 Tex. Cr. R. 548, 223 S. W. 210; Brown v. State, 88 Tex. Cr. R. 55, 224 S. W. 1105; Bell v. State, 88 Tex. Cr. R. 64, 224 S. W. 1108. See, also, Vernon’s Tex. Crim. Stat. 1922 Supp., Vol. 2, arts. 794, 795 C. C. P., and annotations.
“For later authorities upon the subject see Givens v. State, 98 Tex. Cr. R. 651, 267 S. W. 725; Soderman v. State, 97 Tex. Cr. R. 23, 260 S. W. 607.”
In addition to- the authorities cited in the cases of Willing-ham and Cole, we refer to Williams v. State, 95 Tex. Cr. R. 354, 254 S. W. 568; Johnson v. State, 95 Tex. Cr. R. 483, 255 S. W. 416.
A number of the cases mentioned point out the distinction where the State calls- the wife as a witness, as in the Brock case, 44 Tex. Cr. R. 335, 71 S. W. 20, and where the defendant places her on the stand.
*599From another angle it is doubtful'if Art. 714 C. C. P. had application to the woman claimed to be appellant’s wife. She testified that she was his “common law” wife. Her statement alone of a legal conclusion could scarcely be deemed sufficient to establish the relationship of husband and wife. See Mann v. State, 44 Texas 642; Sims v. State, 30 Tex. Cr. R. 605, 18 S. W. 410; Johnson v. State, 122 Tex. Cr. R. 224, 54 S. W. (2d) 140.
Other questions suggested in the motion for rehearing are not properly before us for consideration, no objections having been interposed during the trial, and no complaints having been brought forward by bills of exception-. All bills of exception in the record were considered in our original opinion. It is not necessary to further discuss them.
The motion for rehearing is overruled.