We see no error in the denial of the motion for a new trial.
1. The court did not err in ruling that if it turned out from her testimony that Betsy Williams was the first wife of the defendant, that then her testimony would be ruled out, there being no evidence that she was his wife offered by the defendant when objection was made to her. To the very first question asked her she replied that they did live together as man and' wife, and instantly the court ruled that answer out, and she left the stand.
2. There was no error in the refugal to charge that if the defendant and Betsy lived- in a state of concubinage only, then the act of 1866 did not marry*them, and in saying to the jury on the contrary that if they so lived on the 9th of March, 1866, then that act did marry them. The very object of the act was to declare all people, who had been slaves, and were then living as man and wife, but without any legal ceremony of marriage, really and to all intents and purposes as fully husband and wife as though they had been formally married. The evil was that as slaves they lived in concubinage, not being capable of contracting marriage, and the remedy was by that act» that if they so continued to live on the 9th of March, 1866, being then free, such living together by them at that time should amount to the contract of marriage in the eye of the law. And thus it was made just as effectually the contract of marriage by them as if they had been always free and had been legally married.
3. Such a great public event ,as Sherman’s march to the sea, and the time it occurred, would be judicially taken cognizance of without proof, 44 Ga., 302 ; but be that as it may, there was no error in allowing a witness to testify to the time, and to re-open the case for-that single purpose, and the solicitor general was a competent witness.
*2634. Elizabeth or Betsy Williams having been ruled incompetent as a witness before the jury, it is not easy to see how any affidavit of hers could affect the case, and the court did not erf in denying a new trial on account of her deposition as newly discovered testimony. The other depositions of two witnesses were not deemed sufficient to authorize the grant by the presiding judge, and we cannot see such error in his ruling as will enable us to grant a new trial in opposition to his views. The defendant makes no affidavit that he did not know of the testimony before the trial, and that fact alone is enough to justify the judge in overruling this ground in the motion.
5. The evidence is abundant to show that the defendant lived with the woman as his wife for years before the war, and' afterwards both before and after the 9th of March, 1866; and tlfe verdict we think is right. His wife was unfaithful; he got mad and married again without a divorce. Being a free citizen, he must act as one, carrying the burdens, if he so considers them, as well as enjoying the privileges of his new condition.
The jury recommended him to extreme mercy, and the judge heeded that recommendation, and made the punish* ment very light for the crime. This action must stand, unless the pardoning power of the state should see fit to interpose. 40 Ga., 244.
Cited for plaintiff in error; 17 Ga., 364; 34 Ib., 379; 40 Ib., 244; 15 lb., 550; 54 Ib., 643; 2 Bouvier’s Law Dic., p. 98.
For the state: Code, §§1667, 3751; 44 Ga,, 302.
Judgment affirmed.