There does not appear to be any error in this record except in one charge of the court. It will be seen that the ■court charged the jury as follows:
“ That in order for defendant to show that the relation of man and wife existed.between him and Fanny on the 9th •day of March, 1866, he must prove that he and Fanny were living together on that exaet clay, and that if he fails to do this, then he fails to prove the relation of man and wife under the act of 1866.”
The jury may have been misled by this charge in two respects, and it is erroneous to that extent.
1. The words “on that exact day” are too strict. Of ■course it must appear either from the state’s or the defendant’s witnesses that the defendant lived with the woman he ■last married .©n the 9th of March, 1866, but proof that •they so lived before and after that day — in that year — would •convince the mind that they were living together on that ■day, and there is evidence looking that way. Especially •ought the -charge to have been qualified in view of the fact that defendant appears to have been gone to another ■county part of the time and yet to have provided for her in his absence — as a man would for his wife.
3. The -charge that .defendant must prove the fact may *224have been understood to mean that he must prove it by his witnesses without regard to the evidence furnished by the-state. According to the ruling in Crawford vs. The State, 12 Ga., 142, this was erroneous.
Inasmuch as the case is rather close on the testimony on this material point, and in view of the situation of our recently emancipated population when the facts transpired, we think that the ends o-f justice require a new trial.
Judgment reversed.