26 S.E. 933 (N.C. 1897), State v. Melton

Citation:26 S.E. 933, 120 N.C. 591
Opinion Judge:CLARK, J. DOUGLAS, J. I concur in the dissenting opinion of the CHIEF JUSTICE.
Party Name:STATE v. MELTON.
Attorney:R. T. Bennett, for appellant. The Attorney General, for the State.
Case Date:March 23, 1897
Court:Supreme Court of North Carolina

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26 S.E. 933 (N.C. 1897)

120 N.C. 591




Supreme Court of North Carolina

March 23, 1897

Appeal from superior court, Anson county; Coble, Judge.

Allen Melton was convicted of bigamy, and appeals. Affirmed.

On an indictment for bigamy the first wife is competent to prove the marriage.

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R. T. Bennett, for appellant.

The Attorney General, for the State.


In an indictment for bigamy the first wife is a competent witness to prove the marriage. Code, § 588; State v. McDuffie, 107 N.C. 885, 890, 12 S.E. 83. Indeed, marriage and public cohabitation as man and wife are public acknowledgments of the relation, and do not come within the nature of the confidential relations between them which the policy of the law has always forbidden either to give in evidence. This disposes of the first four exceptions.

The fifth exception to proving the second marriage by the record book of marriages for the county is not well taken. The same is true of the sixth exception, which was to the admission of the original marriage license, signed by the justice solemnizing the same. Nor was it necessary that the said justice, nor the witnesses attesting the certificate as being present at the marriage, should be in court. The "witnesses of the law" who must be in court, or their absence accounted for, are the subscribing witnesses to a deed, bond, or will, and that is because they are selected to prove the execution of such instrument. But here it is not the execution of the certificate which is to be proved. The certificate filed in the register's office and the registration thereof are both record evidence of the marriage, and the regularity is presumed from such evidence till "the contrary be shown." State v. Davis, 109 N.C. 780, 14 S.E. 55.

The seventh exception was that a witness testified that "the defendant and Harriet Melton were married about 39 years; that they were married about 5 miles from Chesterfield C. H., S. C.; that about two years ago the defendant stated he had another wife, his present wife being present at the time; that defendant and Harriet Melton were slaves when they were married." The admission by the defendant of his former marriage is competent evidence against him. State v. Wylde, 110 N.C. 500, 15 S.E. 5, and numerous cases there cited. In the preliminary examination before the justice the defendant asked to be allowed to testify, and, the justice having given him the ordinary caution, and also having told him that whatever he would say could be used against him in a higher court, the defendant testified that he had been married in Chester county, S. C., to Harriet Melton, while they were slaves, and had raised some children by her, and that in 1894 he married Delia Ann Teel in North Carolina. These admissions were competent to go to the jury. State v. Wylde, supra; 2 Am. & Eng. Enc. Law, 196, and cases cited.

The defendant prayed the court to instruct the jury "that the marriage of the slaves, and their living together in the relation of husband and wife while in a state of slavery, did not constitute the relation of husband and wife in North Carolina; that the omission of the state to introduce any evidence of the law in South Carolina before the jury leaves the jury to be governed by the decisions and laws in this state, and by that law this marriage in South Carolina was not a valid one; that, upon the whole evidence in this case, the state cannot convict." The defendant excepted to the refusal of this prayer. If any part thereof was incorrect, it was not error to refuse it. The witness Streator having testified that the defendant two years ago admitted, in the presence of his second wife, that he had another wife living, this admission was competent to submit to the jury, who will "determine whether what he said was an admission that he had been legally married." Reg. v. Simmonsto, 1 Carr. & K. 164, Miles v. U. S., 103 U.S. 304, and other cases cited in State v. Wylde, supra. This admission does not specify the name of the first wife, nor does the indictment set out her name, and it is not necessary that it should. State v. Davis, 109 N.C. 780, 14 S.E. 55; Whart. Cr. Law, 1714, and cases there cited. It was, therefore, not error to refuse a prayer which contained the instruction "that, upon the whole evidence, the state cannot convict." The witness Streator testified that the defendant and Harriet Melton had been married 39 years, and 2 years ago admitted, in the presence of his second wife, that he had another wife living, and the defendant, before the magistrate, testified that he had married said Harriet in South Carolina while they were slaves, and had raised several children by her. The prayer for instruction is further erroneous in that it asked the court to charge that such a marriage was invalid in North Carolina. There was ample evidence to justify the jury in finding that the cohabitation continued after 1866, for there was further evidence that they "lived together many years and had several children," that two years ago he admitted having another wife, and also evidence from the defendant tending to show that the marriage was between 1861 and 1865. Indeed, the relation, having begun, is presumed to continue till there is evidence to the contrary, and persons married in North Carolina while slaves, who continued to cohabit after the abolition of slavery, were ipso facto legally married (Act 1866, c. 40), and no acknowledgment before an officer was essential. "The marriage was complete before the prescribed acknowledgment" made before the clerk, and therefore,

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even if such acknowledgment were not made at all. State v. Whitford, 86 N.C. 636; State v. Adams, 65 N.C. 537; Long...

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