ON MOTION ROE REHEARING.
Broyles, J.Under the evidence and the defendant’s statement at the trial, the verdict rendered was demanded. When all the undisputed facts in this case are considered, to wit, the living together of the prosecutrix and the accused as man and wife for four years, in fourteen or fifteen different States of the Union; the introduction of the woman (the prosecutrix) by the defendant to his father, brothers, and sisters as his wife; her living with the defendant as his wife amongst his family, in the same house, for many months; his many letters, introduced in evidence, and written to her during a period of several years, the envelopes of which were addressed to her as “Mrs. A. B. Wynne” (his name), and beginning, “My dear wife,” and signed, “Your loving husband;” the admission of the defendant in his statement that he addressed the prosecutrix as his wife, and took her into his family as such; the fact that the defendant, in his statement at the trial, did not deny that he and the prosecutrix, before their cohabitation, had made a mutual agreement to live together as husband and wife, and did not deny that the child in question was his own; his failure to deny any of the above-stated facts, except his mere general statement that “there is no marriage and she can’t find any; she says that the marriage taken place in Cincinnati, yet she writes *265to Covington, Kentucky, for the record,” — all combined, demanded a finding that at least a state of common-law marriage existed between them, and that the abandoned child was legitimate. The defendant, by his own words, just quoted, was evidently only denying that there had been a" ceremonial marriage as testified to by the prosecutrix. Under such a state of facts as is disclosed by this record, the law will presume a prior mutual agreement between the parties to be husband and wife, and when (as in this case) that presumption is not overcome, it becomes conclusive, and no other finding by the jury could be legally made. As was said by Chief Justice Russell in Williams v. State, 15 Ga. App. 311 (82 S. E. 817): “Nothing is better settled than that when a verdict is demanded by the evidence, and no other finding upon the evidence adduced would have been legal and proper, a new trial will not be granted, no matter what errors may have been committed. We confess that this statement is extremely broad; and yet, where the evidence would require the same result upon another trial, it would be a travesty on justice to retry, and again try, a cause, in order to be certain that every detail in the proceeding is technically correct.”
Rehearing denied.
Russell, G. J., dissents.