State v. Eliason

• Decision Date: 31 October 1884
• Citation: 91 N.C. 564
• Court: North Carolina Supreme Court
• Parties: STATE v. W. A. ELIASON and another.

91 N.C. 564

STATE

v.W. A. ELIASON and another.

Supreme Court of North Carolina.

October Term, 1884.

INDICTMENT for fornication and adultery tried at Fall Term, 1884, of IREDELL Superior Court, before Gilmer, J.

The case states that “the evidence was entirely circumstantial and no act of criminal intercourse was proven by direct testimony.”

His Honor, among other things not objected to by the defendants, charged the jury “that this was an offence usually committed in secret, and for this reason perhaps the law does not require the state to prove actual acts of illicit intercourse; but that the state was required to lay before the jury facts and circumstances that would fully satisfy them that the adulterous intercourse charged existed between the parties,” and upon a return of a verdict of guilty, the court pronounced judgment upon the defendant Eliason of six monts imprisonment and one hundred dollars fine.This was during the first week of the term, and the defendant asked the judge to defer the execution of the sentence for a few days during the term, in order that he might attend to some necessary business.The judge assented, but required the defendant to enter into recognizance with security for his appearance from day to day during the term.

Afterwards, towards the end of the week when the case was again called, the defendant asked the court to reduce the term of imprisonment, which His Honor did, making it three months.Thereupon the defendant appealed, assigning as error the instruction to the jury as set out above.

Attorney-General, for the State .

No counsel for defendant.

ASHE, J.

We are unable to see from the statement of the case, or from anything occurring upon the hearing of the case before us, what was the ground of the exception taken to the charge of the court.It was the rule before THE CODE effected a change in the practice (§ 412-3), for the defendant to state his exceptions in writing, before the case was finally submitted by the judge's charge to the jury.And the only change made by THE CODE is, that the exceptions need not be taken at the time or in writing, and may be taken at the hearing in this court.But even in that case, the defendant is not relieved from the necessity of making his exceptions and stating in them some error to his prejudice.Terry v. Railroad91 N.C. 236;andState v. Cowan,7 Ired., 239, where it is held that a defendant, in his exceptions, must show some error to his prejudice,...