Appellant was convicted of murder and sentenced to death. On his appeal he has submitted twelve assignments of error, all of which we have carefully examined. Two of these assignments have presented points which have not been free of difficulty, and we now briefly refer to them.
It was objected on the trial that the state's witness, Salena Moore, was not a competent witness, because it was asserted, and attempted to be proved, by appellant *Page 359 that said witness was and is the common-law wife of appellant. The trial judge permitted full proof on this issue, and, after mature consideration and review of all the evidence, as shown by his opinion dictated into the record, he overruled the objection.
It is, of course, among the essentials of a valid common-law marriage that both parties must intend in good faith to live together in the relation of husband and wife, and that the union shall be permanent and exclusive of all others. 38 C.J. 1317, 1318. The agreement between the parties must be unequivocal and free from any reservations, mental or otherwise, to the full extent that, when consummated by cohabitation, nothing less than a decree of divorce pronounced by a court of competent jurisdiction can dissolve the relation. In order that there may be a valid common-law marriage, neither of the parties shall entertain the thought or intention that either of them could or would terminate the relationship without the consent of the state obtained in a valid proceeding in divorce.
Upon a careful examination of all and every part of the evidence bearing upon this issue, we have concluded that the circumstances, and particularly those which are the more significant in probative force, point to the probability that the arrangement between the parties here, whatever it was, did not measure up to the essential requirements above mentioned, and that the trial judge was justified by the evidence in his finding that there had been no marriage between these parties. In any event, we cannot say that the judge was clearly wrong, or that his decision was against the overwhelming weight of all the evidence produced before him on the subject.
The other assignment refers to the search of the house where the appellant was actually residing at the time. When the officers arrived at this house a few hours after the homicide, they first saw there only the woman, Salena Moore. This house had been jointly rented about March 1st by the woman, Salena Moore, and one Ben *Page 360 Carter, and it is said that the woman occupied one of the two bedrooms and Carter the other. About July 1st thereafter appellant appeared on the scene, and from that time to August 15th, the date of the homicide, appellant and the woman, Salena Moore, occupied one of the rooms; it being claimed, as we have already stated, that appellant was there as the common-law husband of Salena Moore. The officers asked the woman who lived there, and she replied that Ben Carter lived there, and she further informed them that Carter was at that time absent. The officers then stated that they desired to enter and search through the house, to which the woman made no objection, but, on the contrary, invited them in. Upon entering and finding appellant there, the officers were informed particularly by the woman that appellant visited her there sometimes; this statement being made in the presence or hearing of appellant. Even if appellant had any right or title in the premises or to the possession thereof, which he did not have, he heard and acquiesced in the statement that he was only a visitor or guest there, and hence cannot complain of a search thereupon made. Visitors or guests are not within the protection of the constitutional provision against unlawful search and seizure. Polk v. State (Miss.), 142 So. 480, 481.
Affirmed, and Friday, November 25, 1932, is fixed as the date of execution. Affirmed.