State v. Kincaid
| Decision Date | 04 December 1906 |
| Citation | 55 S.E. 647,142 N.C. 657 |
| Parties | STATE v. KINCAID. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; Justice, Judge.
S. A Kincaid was convicted of seduction under promise of marriage and appeals. Affirmed.
In a prosecution for seduction under promise of marriage, the prosecutrix testified that defendant, as an excuse for not marrying her after pregnancy, said that he was in a mess with another girl, that he would stop with such other girl, and come as soon as he could. Held admissible as declarations renewing the obligation to marry, though tending to show the commission of another offense.
The Attorney General and Isaac T. Avery, for the State.
The defendant contends that the court erred in admitting testimony that he was living in fornication and adultery with Lillian Davis, and the brief of the defendant's counsel points out the pages of the record alleged to contain such evidence.
It is contended that such evidence is collateral to the issue, and that it constitutes an attack on the defendant's character before he had become a witness, and put his character in issue. Many authorities are cited in support of such contention, which it is unnecessary to review as we think the counsel for the defendant have misconceived the purport and character of this evidence. It was brought out by the state, in chief, in the examination of the prosecutrix who testified as to her seduction by the defendant under promise of marriage, and that sexual intercourse with him had continued for some time. She says,
For the purpose of corroborating Ethel Hood, Mrs. Jennie Hood, her aunt, was permitted over the defendant's objection to testify: D' All this evidence was received before the defendant was offered as a witness. It was perfectly competent at the time it was offered, and the fact that the defendant afterwards, when examined in his own behalf, denied all relations with Lillian Davis did not make it incompetent. These are declarations of the defendant to Ethel Hood. Conversations with her in which he gives his relations with Lillian Davis as an excuse for postponing the promised marriage with the prosecutrix. These declarations are a part of the res gestae, so to speak, acknowledging and renewing the obligation to marry, but, at the same time, offering his relations with Lillian Davis as a reason for putting off the performance of the promise. It is elementary learning that declarations of a defendant pertinent to the issue, made in the hearing of a witness, are always admissible against him. State v. Lawhorn, 88 N.C. 634. The testimony of Mrs Jennie Hood was not offered in any sense as "character evidence" against the defendant, but solely as corroborative evidence tending to corroborate Ethel Hood's testimony as to the promise of marriage, and why its performance was so long delayed. The record fails to disclose any testimony whatever as to the relations of the defendant with Lillian Davis, except the declarations of the defendant made to the prosecutrix, offered in chief by the state as evidence of a promise to marry, and as an excuse for postponing the ceremony.
During the argument before the jury, one of the counsel for the state was arguing that the defendant was now living in fornication and adultery with Lillian Davis, after debauching Myrtle Sudderth, and seducing the prosecutrix. The defendant objected to the argument as to the defendant's living in fornication and adultery with Lillian Davis. The court overruled the objection, and allowed counsel for the state to proceed with his argument as to the adultery of the defendant with Lillian Davis, and the defendant excepted. We see no reason why the court should have stopped counsel from commenting upon the defendant's relations with ...
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