We sustain the objection, not upon the point made in the argument, but rather upon the point that the witness is not the proper kind of witness to testify to the reputation in which she is held by others. Others can testify as to such a reputation, but she cannot.
When the state rested, Mr. Garrett, counsel for defendant, moved that the jury be instructed to bring in a verdict of not guilty, on the ground that no marriage had been proved except the bare statement of the prosecuting witness concerning her marriage and contended that in a criminal charge of as high a grade as wife beating, strict proof of marriage was necessary, that being the only thing that distinguished such a charge from assault and battery; that the fact of marriage must be clearly proved because the charge was based upon the relation of husband and wife existing. If that relation did not exist, then the charge fell, and not having been proved strictly, no crime has been proved against the defendant and the jury should be instructed to acquit him.
The Deputy Attorney General contended first, that he had proved by the prosecuting witness all the necessary facts required to establish the marriage; second, that under the wife beating statute, the same strictness -was not required as in divorce or bigamy, that the object of the wife beating statute is to prevent men living with women supposed to be their wives, beating and abusing them, the same as if the actual relation of man and wife existed.
Woolley, J.delivering the opinion of the court:
*590[2] The court declines to grant the motion of the attorney for the prisoner that the jury be instructed to return a verdict of not guilty.
There are certain proceedings, both civil and criminal, in which proof of marriage must be made strictly; notably in those cases in civil actions out of which result property rights, and in criminal actions where the marriage is necessarily and primarily the foundation of the procedure, as perhaps in bigamy. While this is a novel question in a criminal proceeding, we nevertheless have had rulings upon a question akin to it in a quasi criminal proceeding, viz., under our statute providing for the support of married women, or rather a proceeding against her husband for the nonsupport of his wife.
The case of State v. Miller, 3 Penn. 518, 52 Atl. 262, which was a case where the husband, was sued for nonsupport of his wife, was defended by the defendant upon the ground that the woman on whose behalf the state brought the action, was not in fact his wife. There it was proved that they had lived together for a number of years and in that relation there had been born to them, children who bore his name with his permission, and that they had lived together as husband and wife in all respects except the intital act of marriage. The court held in that case that in proceedings under that act, the fact of marriage, in either this or a sister state, may properly be proved by competent and satisfactory circumstantial evidence, such as cohabitation, holding themselves out to the public as husband and wife, the admission of the parties, etc.
In the case of State v. Oaks, heard in this court in 1910, and reported in 1 Boyce, at page 576, 76 Atl. 480, which likewise was a quasi criminal proceeding for nonsupport, the husband or alleged husband, after living with his wife for several years, having begotten of her body children, who, after their birth, bore his name, endeavored to avoid his duty in supporting his wife upon the ground that she was not in fact his wife; and the court in that case said, Judge Conrad delivering the opinion:
“It is a well-established principle of law that when persons have represented themselves to be married or have assumed the *591relation of husband and wife, cohabitating and holding themselves out to the public as such, though not in fact married, they will, when it is sought to charge them with any of the civil liabilities growing out of that relation, be conclusively presumed to sustain such relation to each other, and will not be permitted to disprove or deny the marriage.”
We think this case should be submitted to the jury, in order that the jury may determine, as one of the issues, whether or not this defendant is the husband of the prosecuting witness, and if they find that he is, they will be instructed to make their finding accordingly; and if they find that he is not, they will be instructed to acquit him. We therefore refuse the motion of defendant’s counsel for binding instructions.
The court charged the jury upon the law as indicated in the above opinion, and the jury found the defendant guilty.