Smith v. Smith
| Decision Date | 12 March 1895 |
| Citation | 116 N.C. 386,21 S.E. 196 |
| Court | North Carolina Supreme Court |
| Parties | SMITH . v. SMITH. |
Witness—Criminating Evidence.
Under Const, art 1, § 11, providing that no person shall be compelled to give evidence against himself, a witness in divorce proceedings cannot be compelled to answer whether he ever had criminal intercourse with the wife.
Appeal from superior court Durham county; Winston, Judge.
Action by P. H. Smith against Maggie J. Smith for divorce. Prom a judgment for defendant, plaintiff appeals. Affirmed.
J. S. Manning, Boone & Boone, and Argo & Snow, for appellant.
Puller, Winston & Puller, for appellee.
On the trial a witness for the plaintiff was asked: and other questions of a like tendency. The witness declined to answer, stating that his answer would tend to criminate him. His honor found as a fact that an affirmative answer would tend to criminate the witness, and declined to compel him to answer, and the plaintiff excepted. The constitution of the United States (fifth amendment) declares that "no person shall be compelled in any criminal case to be a witness against himself." The constitution of North Carolina (article 1, § 11) declares that he shall "not be compelled to give evidence against himself." The Code, § 1354, says that no person shall be "compellable to answer any question tending to criminate himself." We think these constitutional provisions of North Carolina governing this court ought to be liberally construed to preserve personal rights, and to protect the citizen against self-incriminating evidence. It is conceded and settled that a single unlawful act of sexual intercourse is not a criminal offense, but the question presented is, would the admission by the witness of a single act tend to criminate him? Our opinion is that it does, and that the witness ought not to be compelled to answer the question, for the reason that the admission may be the connecting link of a chain of evidence, disclosing other facts and other circumstances, leading to clear proof of a crime which would not have been known without the admission. The usual reply is that his admission cannot be used against him in any future prosecution, and that he is therefore protected. This fails to reach the mark, for, although it cannot be used against the witness, it may be the means, the link, by which other sufficient evidence has been discovered,...
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...be followed up to the prisoner's subsequent conviction, without putting in evidence his declarations made when a witness. Smith v. Smith, 116 N. C. 387, 21 S. E. 196; Emery's Case, 107 Mass. 172, 9 Am. Rep. 22. But when, as in our state, the statute provides that the witness in such case sh......
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