Ahlberg v. State

The conviction is for bigamy. The appellant was married to Audrey Clark in June, 1919. A prior marriage to Ellen Ahlberg was charged, and supported by proof going to establish a common law rather than a statutory marriage. There was evidence that Ellen Ingall left her home in company with appellant in December, 1909; that soon thereafter appellant wrote the sister of Ellen to the effect that he and Ellen were married. They returned together to her father's home, and openly lived together as man and wife there and elsewhere for about nine years. The woman gave birth to a child, which, according to the State's evidence, was claimed by the appellant as his own, and was treated by him as a daughter. He introduced Ellen as his wife upon various occasions, according to the evidence, and the conduct of each of them towards their neighbors was such as to indicate that they were husband and wife.

The appellant testified that he and Ellen began living together without any agreement that they would become husband and wife, or that they would continue to live together during their lives. He disclaimed having declared that she was his wife, and claimed that he parted from her a few months before the date of his marriage to Audrey Clark.

The court instructed the jury in substance that "if the parties mutually consent and agree together to become husband and wife, and thereafter carry out that agreement and live and cohabit together as husband and wife, and hold each other out to the public as such, the marriage would be valid under our law." This embodies the principle which has repeatedly been given the sanction of this State. In Hearne v. State, 50 Tex. Crim. 431, it is said:

"Whatever be the form of ceremony, or if there be no ceremony, if the parties agree to take each other for husband and wife, and from that time on live professedly in that relation, proof beyond a reasonable doubt of these facts would be sufficient proof of a marriage, binding on the parties." Burks v. State, 50 Tex. Crim. 47,

and cases collated in dissenting opinion in Melton v. State,71 Tex. Crim. 138. In Grigsby v. Reib, 153 S.W. Rep., 1130, it is said:

"Marriage is not a contract but a status, created by mutual consent of one man and one woman. The method by which it is solemnized or entered into may be by proceedings prescribed by statute, or by mutual agreement with cohabitation, but, however, contracted, having the same elements and producing the status of husband and wife. The sole difference which can legally exist is in the method of expressing consent."

The proof requisite to establish the existence of the relation of husband and wife has been the subject of frequent comment, and proof considered in civil cases sufficient has been held inadequate in criminal prosecution. Underhill on Criminal Evidence, Sec. 403 and 404; Wharton's Crim. Evidence, p 472. In the instant case there is evidence that the parties long openly lived together as husband and wife, held themselves out as such, supplemented by declarations of the appellant to the effect that they were married, by which the rule sanctioned by this court is complied with. Dumas v. State, 14 Texas Crim. App., 464; Bryan v. State, 63 Tex.Crim. Rep.; Waldrop v. State, 41 Tex. Crim. 197; Ingersoll v. McWillie, 30 S.W. Rep., 61; Grigsby v. Reib, supra.

Particular complaint is made of the part of the charge which says: "Such agreement to become husband and wife may be expressed or implied. An expressed agreement is where the parties expressly so agree, an implied agreement is one where the conduct of the parties with reference to each other and the subject matter is such as to induce the belief, if any, that they mutually intend to do that which their acts indicate they have done." It may be that the term "implied agreement" is not an apt one in the connection used. The agreement to live together as man and wife was an essential element in establishing the marriage status. As used in the charge probably the term denotes merely a difference in the character of evidence by which the agreement is to be established, that is, whether by direct statement such as the admission that the agreement had been made, or by the proof of facts from which it might be inferred. Fordtran v. Stowers, 113 S.W. Rep., 631; Wojhan v. Bank, 144 Wisconsin, 646. Assuming that the charge would have been improved by the omission of the paragraph mentioned we think, in view of the evidence and the special charges given at appellant's request, the jury could not have been misled. Contained in the special charges given is the statement: "To constitute a common-law marriage, the parties must unconditionally agree to live together as husband and wife during their lives, and then live together and cohabit as such, and so hold themselves out to the public."

In our opinion there was no error committed in permitting the witnesses, who testified to the facts going to show that the appellant and his reputed wife lived together and held themselves out as husband and wife and that the appellant described her as his wife in introducing her to his friends, to add that they had never heard the appellant disclaim the relationship.

There was no impropriety in receiving the proof that a daughter was born to Mrs. Ahlberg during her cohabitation with the appellant. Waldrop v. State, 41 Texas Crim. App., 199; State v. Jenkins, 44 S.W. Rep., 220.

The appellant having by his testimony questioned his parentage of the daughter, his letter to her calling her his little girl, expressing a desire to be present upon her birthday, and regretting his inability to spend that day with the mother and daughter, was properly received.

Bills of exceptions not discussed, including those reserved to remarks of counsel, have been carefully examined, and disclose, so far as we are able to determine, no harmful departure from the rules of practice.

The judgment is ordered affirmed.

Affirmed.

ON REHEARING. November 17, 1920.