seen, instructed the jury that their verdict must be for the defendants, unless they find from the evidence that on June 29, 1918, there existed among the defendants the firm or copartnership known as the Frederick Transit Company and that the defendants were actually partners at this time. The defendants' third and eighth prayers were demurrers to the evidence, and were properly refused for the reasons stated by us in discussing the first prayer. There was evidence legally sufficient to be submitted to a jury to establish the negll gence of the defendants in running the car, and to support the theory of the plaintiff's case that the injury was caused by the carelessness and neglect of the defendants. man and wife, and claimant as their child, etc., Presumption of marriage between dece- 6-Marriage 50(5)—Hold ing that legal presumption of marriage established justified. In proceedings between rival claimants, a grandson and certain nephews and nieces, to a decedent's estate, evidence held to justify the holding of the orphans' court that there was established a legal presumption of marriage between decedent and the woman who was the ap-mother of his daughter, such daughter having The question of the existence of the partnership vel non was one for the jury, under all the facts of the case, and not for the court, and, as we find no reversible error in the rulings of the court on the defendants' exception to the prayers, the judgment pealed from must be affirmed. Judgment affirmed, with costs. 1. Marriage 40(9)-Presumption of legal marriage gives way to presumption of Innocence in case of two marriages by same party. been the mother of claimant grandson, the grandson's mother having thereby been legitimated. Appeal from Orphans' Court of Baltimore City. "To be officially reported." Petition by William H. Lawrence, administrator of the estate of William J. O'Leary, deceased, wherein William Fritz, by his father as his natural guardian, and Edward O'Leary and others, petitioned for the estate as heirs of decedent. From an order for dis A legal marriage is only presumed from tribution to Fritz as decedent's grandson, the general repute and habit, and, where the pre-other claimants, Edward O'Leary and others, sumption is met by the counter-presumption appeal. Order affirmed. of innocence, the former must give way, and the law requires that a first alleged marriage invalidating a second shall be established as an actual fact by more direct proof. Argued before BOYD, C. J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Rowland K. Adams, of Baltimore, for ap 2. Marriage 40(4)-Law presumes legal When parties live together ostensibly as husband and wife, demeaning themselves toward each other as such, especially if they are received into society and treated by their friends and relatives as married, the law will presume they have been legally married. 3. Bastards 8-Marriage 51-Marriage may be inferred from cohabitation after birth of child, etc. Lewis Hochheimer, of Baltimore, for appellee. ADKINS, J. William J. O'Leary died in February, 1920, intestate. William H. Lawrence, having been appointed administrator of his personal estate, on August 5, 1920, filed a petition in the orphans' court of Baltimore City in which he stated there had come into his hands as administrator the sum of $3,551.39; that at the time of the death of the Where there is no impediment to a marriage, and the connection between the parties is illicit in its commencement, it will be pre-decedent he was a widower and left no chilsumed to continue to be of such character, and to overcome the presumption it is necessary to bring forward other evidence than that of cohabitation to establish the marriage; but if, after the birth of a person claiming to be the legitimate child of his parents, though born a bastard, there be cohabitation of his father and mother, the latter taking the former's name, and the parties treating each other as dren surviving him, but that the administrator has been advised that the nearest relative was one William Fritz, a grandchild, the son of a deceased daughter, Cora Fritz, née O'Leary; that while the administrator was advised that the said grandchild was the only person entitled to the personal estate of the said William J. O'Leary, it was possible there (113 A.) This witness, when asked whether or not they were known in the community as husband and wife, answered: "They might be in the community." She also said she never visited them, and did not know how they lived together and spoke of each other. "Q. You never had occasion to look directly into the question as to whether they were husband and wife, did you? Ans. Never. Q. Do you know whether Cora spoke of them as her parents? might be others unknown to the administrator some day she hoped they would get married. who would be entitled to a distributive share in said estate. The petition therefore prayed for an order authorizing and directing him to appoint a meeting of all persons entitled to distributive shares of the estate. Such an order was passed and notice published in accordance therewith, as a result of which two petitions were filed by rival claimants; one in behalf of the said William Fritz by his father as his natural guardian in which it is alleged that the said William Fritz is the grandchild and next of kin of the decedent; and one by certain nephews and nieces who allege that the decedent died unmarried and without leaving any children or descendants, and leaving said petitioners as next of kin. After a full hearing in which a number of witnesses testified, the orphans' court decided that William Fritz was the grandson of the decedent and directed the administrator to distribute to him the residue of the estate after having paid the costs of administration. The case comes up in an appeal from that order. Ans. She spoke of them as her parents. Q. Did you ever come in contact with him very much? Ans. No. sir; not very much. Q. You would say your acquaintance, as far as coming in contact with him is concerned, is rather less than that of the other witnesses? Ans. It was." It does not appear whether the alleged declarations of Mr. and Mrs. O'Leary testified to by Mrs. French were made before or after they began living together. Mrs. Wright, another niece and one of the claimants, testified her uncle was living with Cora's mother, but she was never acknowl she knew he was never married; that she never heard him introduce her as his wife; that he never visited any of his relatives with her. "Q. Do you know his reputation in the city of Frederick among his relatives? Was he known as married or single? Ans. To my knowledge I believe he was acknowledged as a single man among his friends." Witness further testified that she did not know how they were generally regarded in the community by people who knew them: that she knew nothing about their conduct towards each other, as she never associated with them; that she never heard her uncle say he was not married; that he was very quiet and never talked much about his business. It is not disputed that the mother of Wil-edged "as a relative of ours"; that so far as liam Fritz, who before her marriage was known as Cora O'Leary, was lawfully married to his father; but the nephews and nieces deny that she was the daughter of the decedent, or at any rate that she was his legitimate child. One of the nieces, Mrs. Mary E. French, testified that Cora was born while her mother was living with a man named Wisner as his wife, and that on one occasion when Cora was four or five years old, her mother came to the home of witness' mother where decedent was then living and asked for him. "She says to my mother, 'I want to see William O'Leary.' And my mother said, 'What right have you got to see him? She says: 'I want to talk to him. I am going to leave Mr. Wisner, and I want him to live with me.' My mother had my sister there, One other witness, Alexander Coulter, testiand she said, 'I have a little girl like'-fied that he had discussed the matter three meaning my sister. She said, 'It is William's little girl.' The girl she was referring to was this girl Cora. Q. At that time did you know her as Mrs. O'Leary or Mrs. Wisner? Ans. Mrs. Wisner; and from the time she died I always spoke of her as Mrs. Wisner, or Cora as Cora Wisner." Witness further testified that none of decedent's relatives except her father's family lived in Baltimore, most of them living in Frederick; that they all regarded him as a single man and considered his relations with Cora's mother as illicit; that none of them ever visited him while he was living with her; that Mr. Wisner left her about the time her uncle went to live with her, and went to Germany; that her uncle was boarding at Mr. Wisner's house when Cora was born; that her uncle said he was single; that some day he would pay Mrs. O'Leary off and send her to Germany; that he spoke of her as the boarding house lady or four times with Mrs. French and Mrs. Wright and their mother and brothers, and had heard them say their uncle was not married; that he did not know whether or not he and Mrs. O'Leary were recognized as husband and wife by other people. A number of witnesses, all of whom, except the father of the alleged grandchild, appear to be disinterested, and all of whom lived in the neighborhood in Baltimore City where Mr. and Mrs. O'Leary resided, testified that they held themselves out always as husband and wife and spoke of Cora as their daughter and William Fritz as their grandson, and were very fond of them. When Cora was married she and her husband lived with Mr. and Mrs. O'Leary until Cora's death, and after her death the boy was left with them for a while at Mr. O'Leary's request. They lived together as one family. Some of these witnesses had known Mr. and Mrs. O'Leary of them testified that they were generally from which marriage may be inferred, notrecognized as husband and wife; she was ad- withstanding the original illicit connection mitted to a hospital as Mrs. O'Leary and that between the parties. Jones v. Jones, 45 Md. is the name by which she was buried. They at pages 155 and 156. lived together from about 1886 until Mrs. O'Leary was taken to Bay View Hospital, where she died in 1913. She appeared to have been married, as she wore a wedding ring, and a marriage certificate hung on the wall; but the witnesses who testified to these facts could not say what name appeared either in the ring or in the certificate. Unfortunately there is no positive and direct proof of a marriage between the decedent and the woman with whom he lived for more than 25 years. But on the other hand there is no proof that the woman known as Mrs. O'Leary was ever married to Wisner even if full credit be given to the testimony of appellants. So we are left largely to legal pre sumptions. The result of a careful analysis of the decisions in this state applicable to the facts of the present case (and every phase of the case is so fully covered by these decisions as to make unnecessary reference to other authorities) is as follows: "Marriage may, doubtless, be proved, in civil cases, other than actions for seduction, by reputation, declarations and conduct of the parties; but where reputation is relied on, that reputation, to raise the presumption of marriage, must be founded on general, not divided or singular opinion; and where reputation in such case is divided it amounts to no evidence at all. And so with respect to the declaration of the parties; the value of such declarations as evidence will always depend upon the circumstances under which they were made." The above quotation is from the case or 298, where the overwhelming weight of testiBarnum v. Barnum, 42 Md. at pages 297 and mony as to reputation and declarations was against marriage, and there was comparatively little in support of it. In Jackson v. Jackson, 80 Md. at page 189, 30 Atl. 752, this court said that when there was a conflict in the testimony as to general reputation the question should be submitted to the jury. [4] Accepting all the testimony on both [1] A legal marriage is only presumed from general repute and habit, and where the presides as true, we find that when Cora was sumption is met by the counter presumption of innocence, the former must give way, and the law requires that the first alleged marriage shall be established as an actual fact by more direct proof. Jones v. Jones, 45 Md. 146; Jones v. Jones, 48 Md. 391, 30 Am. Rep. 466. [2] When parties live together ostensibly as husband and wife, demeaning themselves towards each other as such, and especially if they are received into society and treated by their friends and relatives as having and being entitled to that status, the law will, in favor of morality and decency, presume that they have been legally married. Jones v. Jones, 48 Md. at page 403, 30 Am. Rep. 466; Redgrave v. Redgrave, 38 Md. 93; Richardson v. Smith, 80 Md. at page 93, 30 Atl. 568. The law always presumes in favor of legitimacy. Barnum v. Barnum, 42 Md. at page 296. [3] While it is true that where there is no impediment to marriage, and the connection between the parties was illicit in its commencement, it will be presumed to continue to be of the same character, and in order to overcome that presumption it will be necessary to adduce other evidence than that of cohabitation of the parties to establish their marriage; yet if after the birth of a person claiming to be the legitimate child of his parents, though born as a bastard, there be cohabitation of his father and mother, the latter assuming the name of the former, and the parties treat each other as man and wife, and treat the claimant as their child, and they are treated as and reputed to be man and wife by their friends and acquaintances, these are born her mother was living with Wisner and O'Leary was boarding with them. The only testimony that Cora's mother and Wisner were married is the simple general statement of Mrs. French to that effect; but she does not say she saw them married, or even that she knew anything about the reputation as to their relations. In fact, she was only eight years old when Cora was born. The mother did not tell her Wisner was her husband, but she did tell her that O'Leary was the child's father, that she was going to leave Wisner and wanted O'Leary to live with her. Even if there were a presumption of marriage between her and Wisner growing out of their relations, this presumption would be overcome by the subsequent relations between her and O'Leary, which would have been criminal assuming her marriage to Wisner. The presumption of innocence in the second case would overcome the presumption of marriage in the first, even if otherwise there were enough evidence to raise such presumption. The only question therefore is, leaving her former relations with Wisner out of consideration, does the evidence in this case raise a presumption of marriage between O'Leary and the woman known as Mrs. O'Leary? The orphans' court, which had the benefit of the presence of the witnesses and an opportunity to observe their demeanor, held that it did. The only people who appear not to have accepted Mr. and Mrs. O'Leary as man and wife were certain relatives who apparently had almost forgotten his existence until after his death, when notice to the next of kin to appear was published. They chose, without taking the trouble to investigate, to assume (113 A.) 4. Criminal law 531 (4)-Exclusion of question as to whether defendant's alleged confessions were voluntary held proper, where defendant denied making such confessions. Mr. and Mrs. O'Leary lived together for near- was admitted and which denied his making ly 25 years, during which time appellants the confessions at all, and the confessions confessedly had no association with them, could have been admitted in spite of his tesand knew nothing of how they were holding timony, he was not prejudiced. themselves out to the public, or of how they were regarded in the community in which they lived. It is significant that the only disinterested witness who testified for appellants was a friend of theirs who knew nothing except through them. It is also worthy of note that four of appellants did not take the stand to corroborate their sisters in re gard to the family reputation. It is hardly disputed that Cora was O'Leary's daughter, born out of wedlock; and there is abundant proof that he acknowledged her as his child. [5] Under all the testimony, we think the orphans' court was justified in holding that a legal presumption of marriage had been established, and the child thereby legitimated. Order affirmed, with costs to appellee. (128 Md. 137) ROBINSON v. STATE. (No. 24.) (Curt of Appeals of Maryland. March 2, 1921.) 1. Criminal law 1169(12)—Admission of defendant's narrative of his movements on the day of the murder, without preliminary proof that it was voluntary, not error, where it excluded him from the crime and was afterwards shown voluntary. In a prosecution for murder where alleged confessions were introduced in evidence, the court's refusal to permit question to defendant by his counsel, "If any statement has been made by you, did you make that statement voluntarily or were you required to make it, coerced to make it, persuaded to make it, or asked to make it?" was proper, where defendant had just denied emphatically that he made any of the statements in such alleged confes sions. Appeal from Criminal Court of Baltimore City; Chas. W. Heuisler, John J. Dobler, and Walter I. Dawkins, Judges. "To be officially reported." Robert Robinson was convicted of murder in the first degree, and he appeals. Judgment affirmed. Argued before BOYD, C. J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Milton Dashiell, of Baltimore, for appellant. Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen., and Robert F. Leach, Jr., State's Atty., of Baltimore City, on the brief), for the State. URNER, J. The appellant has been con In a prosecution for murder, that defendant's statement of his movements on the day of the murder was inadmissible because without preliminary proof that it had been volun-victed of murder in the first degree and is tarily made is not a valid objection, where such narrative excluded him from participation in the crime and subsequent testimony proved that it was voluntary. 2. Criminal law 531(1,4)-Accused may offer evidence prior to admission of confessions showing inducement by threats or promises. In a prosecution for murder, whether prior statements of the defendant admitted in evidence were voluntary so far as they amounted to a confession of guilt, or were induced by threats or promises, was a subject of preliminary inquiry and determination with the burden of proof as to their having been properly obtained resting upon the prosecution, and the accused had the primary right to offer evidence prior to admission of such alleged confession. 3. Criminal law 1170(1)—Erroneous exclusion of defendant's testimony as to confessions before their admission held not preju dicial. under sentence of death. The homicide charged against him was committed in Anne Arundel county. After his indictment in that jurisdiction, the case was removed to the criminal court of Baltimore City, where it was tried before Judges Heuisler, Dobler, and Dawkins; a jury trial being waived. The victim of the murder was James Elder Tydings, and the scene of the crime was in the woods near Town Neck Church on the state road from Annapolis to Baltimore. Mr Tydings was on his way home from work ov a Saturday afternoon when he was killed and robbed. The weapon used was a large stone with which his skull was crushed and which was found near his body. Within a few hours after the murder was committed, the appellant left his home in the neighborhood and went to Virginia. He After being brought back to this state, he was arrested there about two weeks later. was questioned as to his movements on the Although not permitting defendant to testify prior to the introduction of alleged confes- day of the murder. His first statement was sions whether they were voluntary or induced to the effect that he stopped work at Round by threats and promises was error, where de- Bay on that day at 12 o'clock and returned fendant subsequently offered testimony which to his home, where he ate his dinner and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the admissibility of the appellant's declarations to which we have referred. remained there, mending shoes and getting | ceptions taken at the trial relate solely to ready to leave, until about 3 o'clock, when he went to Boone Station and boarded a train for Baltimore, where he took a train at 4:45 for Washington, and went on to Virginia the same evening on a visit to his former home at Forrest Depot in that state. [1] The first and second exceptions were reserved on the theory that the original statement made by the appellant as to his movements on the day of the murder was not shown to have been voluntary, and that it was inadmissible without preliminary proof to that effect. In the statement to which these exceptions relate there was no admission, but a denial, of the appellant's guilt. It was a narrative of his movements which, if true, excluded him from any participation in the crime. The subsequent testimony proved that it was voluntary. There was no error in the rulings on this point. [2, 3] The third, fourth, fifth, sixth, seventh, and eighth exceptions were taken to the refusal of the trial court to permit the appellant to testify as to the involuntary character of his other declarations prior to their admission in evidence. In so far as the statements thus attributed to the appellant amounted to a confession of guilt, the question as to whether they were made voluntari In the course of another interview, which occurred on the day following the one just referred to, the appellant stated that after returning home from work and eating his dinner, on the afternoon of the murder, he went down to the store to buy a pair of socks, and while he was there a truck came along the road on its way to Baltimore, and he jumped upon the truck and rode along with the driver awhile inquiring whether there was any work he could get in Annapolis, and while thus talking he rode further than he intended; that he got off the truck after passing Town Neck Church and walked back along the road and went into the woods, where he saw Mr. Tydings in the act of driving away some colored boys who were playing "craps"; that he saw Mr. Tydings hit one of the boys, and saw one of them wrestling with him; and that he (the appellant)ly, or were induced by threats or promises, then left the woods and went home. When asked whether he would point out the place where he saw Mr. Tydings and the boys, he consented to do so, and went with two officers in an automobile to within a short distance of the woods in which the murder was committed, and there conducted them on foot to the spot where the body of Mr. Tydings was reported to have been found. Later on the same day the appellant was confronted with the three boys he had mentioned as having been in the woods with Mr. Tydings, and persisted in that assertion in spite of their denials. In an interview two days afterwards with Mr. Green, the state's attorney for Anne Arundel county, the appellant stated that when he went into the woods, on the afternoon in question, he saw Mr. Tydings, who cursed him and struck him with a stick, and he returned the blow, also using a stick; that with a second blow he knocked Mr. Tydings down, and then went through his pockets and got $12 in paper money, and looked through the basket of provisions he had been carrying and took out some pork chops, and then went home, where his wife cooked the chops, and after they were eaten he changed his clothes and left for Virginia by way of Baltimore and Washington as already narrated. Upon being questioned further by Mr. Green, the appellant said that he struck Mr. Tydings with a stone, and not with a stick, but did not intend to kill him and did not know that his blow was fatal. He also admitted that he had not been struck at all by the victim of his attack. The effect of the other testimony in the was a subject for preliminary inquiry and determination, with the burden of proof, as to their having been properly obtained, resting upon the prosecution. Upon this primary and essential question the accused had the right to testify and offer evidence prior to the admission of his alleged confession. Biscoe v. State, 67 Md. 6, 8 Atl. 571; McCleary v. State, 122 Md. 394, 89 Atl. 1100; 16 C. J. 734. The rulings upon the exceptions directed to this point were consequently erroneous, and if they had resulted in any possible prejudice to the appellant, the judgment would have to be reversed and the case remanded for a new trial. But the testimony of the appellant subsequently offered and admitted, in regard to the various declarations to which these exceptions refer, shows conclusively that he was not injured by the earlier exclusion of his testimony on that subject. The proffer had been to prove by him that the declarations were not voluntary, but when testifying later he denied that any of them had ever been made at all. It is evident, therefore, that if the rejected proffer had been accepted, it would not have been supported by the appellant's testimony. Obviously he was not harmed by the refusal to permit him to testify at one stage of the case in support of a theory which he definitely rejected when he came to make his formal defense. His denial that he had made any of the statements proven by the state was, of course, given due consideration by the judges to whom the issue of his guilt or innocence was submitted; but if his testimony to that effect had been received before any of his alleged declarations were admitted, it |