Wynne v. State

86 S.E. 823, 17 Ga. App. 263, 1915 Ga. App. LEXIS 325

Opinions

Broyles, J.

1. By the common law and the law of this State, a mutual agreement to be hufeband and wife, by parties able to contract, followed by cohabitation, is recognized as a valid marriage. Askew v. Dupree, 30 Ga. 173; Dilloñ v. Dillon, 60 Ga. 204, 209; Clark v. Cassidy, 64 Ga. 662; Smith v. Smith, 84 Ga. 440 (11 S. E. 496, 8 L. R. A. 362); Dale v. State, 88 Ga. 552 (15 S. E. 287); Southern Railway Co. v. Brown, 126 Ga. 1, 2 (54 S. E. 911); Drawdy v. Hesters, 130 Ga. 161, 168 (60 S. E. 451, 15 L. R. A. (N. S.) 190); Oliver v. State, 7 Ga. App. 695, 697 (67 S. E. 886).

2. The accused was indicted for the abandonment of his minor child, and his only defense was that he had never been legally married to the mother of the child, and that, under the law, he could not be convicted for the abandonment of an illegitimate child. There was sufficient evidence to authorize the jury to find that there had been a legal ceremonial marriage between the accused and the prosecutrix, but this finding was not demanded by the evidence. However, the evidence, taken as a whole, and including the defendant’s statement, demanded a finding that there had at least been a valid common-law marriage between these parties, and that the abandoned child was the legitimate offspring of this union. This being trae, the conviction of the accused was demanded by the evidence; and consequently, if there were any errors in the charge of the court, they do not require the grant of a new trial.

Judgment affirmed.