State v. Ashe

• Decision Date: 19 December 1928
• Docket Number: 578.
• Citation: 145 S.E. 784,196 N.C. 387
• Parties: STATE v. ASHE.
• Court: North Carolina Supreme Court

145 S.E. 784

196 N.C. 387

STATE v. ASHE.

No. 578.

Supreme Court of North Carolina

December 19, 1928

Appeal from Superior Court, Haywood County; Walter E. Moore, Judge.

Cling Ashe was convicted of abduction, and he appeals. No error.

Assignments of error not calling attention to particular erroneous points cannot be considered.

It was in evidence, on the part of the state: That the defendant was working in the mountains, logging with skidders, for Boice Hardwood Company. To carry on his work, he had a shanty for his workmen. The prosecuting witness Jesse Haynes and his wife worked for defendant; Jesse Haynes peeling tan bark, and his wife cooking for five or six of the workmen and defendant, and was paid by defendant. She ran the boarding house for defendant about eight months. Haynes and his wife had been married nearly four years and had two children. Defendant slept in the next shanty to Haynes and his wife. That Jesse Haynes and his wife lived together and were getting along all right until defendant came and lived in the shanty. That, while the hands and the husband were away during the day at their work, defendant was seen about the kitchen with Haynes' wife. That defendant gave Haynes' wife money, clothes, stockings, etc., at small cost. Haynes testified: "I was not at home when my wife left me. I don't know who she left with. I had already drawed up an idea where she was; when I heard Cling Ashe's car was at the top of the mountain I knew where the woman was. I found her at Sylva. I took out papers for Mr. Ashe. I withdrew those papers. In pursuance of my taking out those papers I had several conversations with Cling Ashe. He told me where my wife was. He told me if I would withdraw the papers and wouldn't have him prosecuted he would show me the woman. He took me and showed me the woman. The first time I went to Sylva I had seen suspicion of wrong that had been committed between my wife and Mr. Ashe, but had not seen-did not know anything definite. *** My wife stated to me in the presence of Cling Ashe, that she wasn't going to live with me any more. When she made that statement, Cling said she could stay with him as long as she wanted to. *** Their acts and appearance made me think they had improper relations. That was all they could talk about; they seemed more perfect man and wife than me and her. *** I was not jealous of my wife. Not a bit. I think she was a virtuous woman till the time we took the camp. After we took the camp I think she lost her virtue. I lived with her eight months after I thought that, but I thought I could save my kids and home and get it stopped. I thought my wife was having sexual intercourse with this man for eight months, and I put up with her. *** I couldn't say who took her to Sylva. I didn't see anybody take her but Mr. Ashe showed her to me. He said, 'You are a damned fool for coming and searching my house after I ran away with the woman, you ought to know I wouldn't have the woman here after running away with her.' Ashe told me that my wife come with him in his car from the Boice works to Waynesville."

It was in evidence that, after Haynes' wife left, that defendant visited her frequently at different places; that he rode around in a car with her and others. It was in evidence that Haynes' wife was an innocent and virtuous woman. The mother of Jesse Haynes' wife, Mrs. Joe Pressnell testified: "Saw her and Cling Ashe in the room together prior to the time she left, I saw them standing in the kitchen together. She told me she was going to leave." After her daughter left her husband, Mrs. Pressnell had a conversation with defendant: "He said I was trying to lay all the blame on him, and I asked him what he would do if it was his daughter and some old man was to come along and take her off. I said, supposing Joe Pressnell was to come and take Jim Whitehouse's wife, what would he do? I said he would be in for shooting his brains out. He didn't say anything."

There were other circumstances. The defendant's defense was largely that he was a married man, 58 years old, and that he was befriending the young woman, and that he had never at any time done anything inconsistent with this attitude. The woman herself testified along this line, and that she left her husband because he was mean to her. Both testified that there were no improper relations between them.

The material assignments of error and other necessary evidence will be set forth in the opinion.

J. W Ferguson, John M. Queen, and Hannah & Hannah, all of Waynesville, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

CLARKSON J.

Defendant was indicted for abduction of Mrs. Jesse Haynes, a married woman, under C. S. § 4225, which is as follows: "If any male person shall abduct or elope with the wife of another, he shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year nor more than ten years: Provided, that the woman, since her marriage, has been an innocent and virtuous woman: Provided, further, that no conviction shall be had upon the unsupported testimony of any such married woman." State v. O'Higgins, 178 N.C. 708, 100 S.E. 438; State v. Hopper, 186 N.C. 405, 119 S.E. 769.

One of the essential elements of the offense after the elopement is adultery.

"Evidence of a crime may be circumstantial as well as direct. Prostitution is an offense usually committed in secret, and sometimes circumstantial evidence is the only kind that can be obtained. It is sufficient to show facts and circumstances from which the jury may reasonably infer the guilt of the parties. State v. Eliason, 91 N.C. 564. From the facts and circumstances, it is a substantial right that the jury...