charging the jury, in part:
*261[1] Section 4712, Rev. Code 1915, provides, that:
“Whoever, being the husband of any woman, shall assault and strike or beat his wife, shall be guilty of a misdemeanor.” * * *
The object of the statute is to prevent a man living with a woman, in the relation of husband and wife, and supposed to be his wife, from assaulting, striking and beating her.
Counsel for the accused has requested the court to instruct you to return a verdict of not guilty, for the reason, it is claimed, that the State has failed to establish the existence of a legal marriage between the accused and the prosecutrix; that a lawful, and not a common law marriage must be shown.
The court declines to instruct you to return a verdict of not guilty, but submits the case to you for your detérmiriation under the facts and law of the ca'se.
If you find from the evidence that a marriage was solemnized between the accused and the prosecuting witness, and that they lived and cohabited together as husband and wife, holding themselves out, as such, to their relatives, friends and neighbors, then the court instructs you that they were and are husband and wife within the legislative intendment and purpose of the statute, though there was, at the time of the alleged assault, a pre-existing marriage between the accused and another woman.
If you find that the accused did enter into matrimonial relations with the prosecuting witness, and that he did assault, strike and beat her as charged in the indictment, then your verdict should be guilty; for whether he was, or was not, prior thereto married to another woman, or whether the latter marriage had been dissolved, is immaterial.
If, however, you find that the marriage relation did not exist between the parties here, or, if it did, that the alleged assault was not made, your verdict should be not guilty.
Verdict, guilty.
Counsel for the accused moved for a new trial, the reasons assigned therefor being based upon the charge of the court.
*262Argument on the motion was heard by Judges Boyce and Rice sitting.
Boyce, J.:[2] When a previous marriage is relied upon to avoid a subsequent marriage, there exists a presumption in favor of the validity of the latter; and satisfactory proof of the former marriage is required to overcome this presumption.
In this cáse the question of the alleged prior marriage between the accused and another woman was not submitted to the jury; but assuming the existence of the alleged former marriage, yet the subsequent marriage between the accused and the prosecuting witness, though unlawful, established the relation of husband and wife within the purview of the statute. The marriage solemnized in this case entitled the woman, and women like situated, to the protection afforded by the statute.
It is the opinion' of the court, tinder the facts of the case, that a new trial should be denied, and that judgment of the court should follow the verdict.
The motion is denied.