State v. Aswell
| Decision Date | 23 March 1927 |
| Docket Number | 140. |
| Citation | 137 S.E. 174,193 N.C. 399 |
| Parties | STATE v. ASWELL et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Greene County; Stack, Judge.
Mabel Aswell and Joe Smith were convicted of prostitution assignation, fornication, and adultery, and they appeal. Reversed.
The defendants were tried upon a warrant charging them with prostitution, assignation, fornication, and adultery. The cause was transferred to the county court of Greene county and the defendants were convicted and appealed to the superior court. Upon trial in the superior court they were convicted, and the defendant, Joe Smith, sentenced to work the public roads.
The evidence tended to show that the defendant, Joe Smith, had been a minister for 16 years, serving churches in Wayne and Greene counties; that he had been married for over 30 years. The defendant, Mabel Aswell, was a member of the same church of which the defendant. Smith, was pastor. The husband of Mrs. Aswell died in 1924, and the defendant, Smith, and his wife went to live at the home of Mrs. Aswell, where they remained about three months during the year 1925, and thereafter moved away.
The evidence further tended to show that prior to the death of her husband the defendant, Mabel Aswell, had been a respected and loved woman in her neighborhood.
Wife cannot testify against husband in trial for adultery.
Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.
Exception No. 1 is to a portion of the testimony of a witness for the state as follows:
Exception No. 2 was to the testimony of another state's witness as follows:
The defendants in apt time objected to the testimony, and it was admitted as evidence in the case.
The evidence objected to is no more than mere neighborhood rumor and community gossip and was incompetent. Hopkins v. Hopkins, 132 N.C. 25, 43 S.E. 506; State v. Holly, 155 N.C. 486, 71 S.E. 450; State v. Jeffreys, 192 N.C. 190, 131 S.E. 425.
The third exception relates to testimony of the wife of the defendant, Joe Smith, who was asked the following question:
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... ... The ... wife of the defendant Kluttz was not competent to give ... evidence against her husband, in a prosecution like the ... present, C. S. § 1802, and it was error as to him to permit ... her to do so. State v. Aswell, 193 N.C. 399, 137 ... S.E. 174; State v. Reid, 178 N.C. 745, 101 S.E. 104; ... State v. Raby, 121 N.C. 682, 28 S.E. 490; State ... v. Harbison, 94 N.C. 885. See, also, State v ... Spivey, 151 N.C. 678, 65 S.E. 995, and State v ... Cox, 150 N.C. 846, 64 S.E. 199 ... It ... ...
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