State v. Mcduffie

• Decision Date: 17 November 1890
• Citation: 107 N.C. 885,12 S.E. 83
• Court: North Carolina Supreme Court
• Parties: State. v. McDuffie et al.

107 N.C. 885

12 S.E. 83

State.

v.McDuffie et al.

Supreme Court of North Carolina.

Nov. 17, 1890.

Fornication and Adultery — Proof of Marriage—Instructions—Exceptions.

1. On an indictment for fornication and adultery, the husband of the feme defendant is a competent witness against her to prove her marriage to him. Code, § 588.

2. The single state being presumed to exist till the contrary is shown, the prosecution is not called on to prove the defendants are not married. Such marriage being peculiarly within the knowledge of the defendants, the burden is on them to show it,

8. It is not error to refuse a prayer for instructions, however correct, when there is no evidence to support it.

4. An exception "to the charge as given" is too general.

(Syllabus by the Court.)

This was an indictment for fornication and adultery tried before Graves, J., and a jury at October term, 1890, of Moore superior court. It was in evidence that in the spring of 1889 the defendants lived together in a small house containing one room near west end of Moore county; that the witness boarded with them two weeks during that spring; that they slept together on a bunk, and witness saw them in the bunk together four different times during the two weeks; that he did not eat with them, but slept in the same house; that the next time he saw them together was at a church in Richmond county, in August, 1889, when the male defendant asked witness to go home with him, which witness did, and stayed one night; that defendants were together that night, (the house bad but one room;) that the defendants were not married as he knew. Another witness, one Hackney, testified without objection that he and female defendant were lawfully married 20 years ago, and had never been divorced. The defendants introduced no evidence, but asked the court to instruct the jury (1) that the jury cannot convict the defendants upon any evidence of their living together in Richmond county, and this evidence is merely admissible for the purpose of corroborating the evidence of the substantive offense alleged to have beencommitted in Moore county; (2) that the burden is upon the state to satisfy the jury beyond a reasonable doubt that the defendants were not married, and, if the state has failed to satisfy the jury beyond a reasonable doubt upon this point, the jury should return a verdict of not guilty. The court refused to give the instructions asked, and defendants excepted. The court charged the jury, among other things, that the burden of proving defendants not married was not on the state, but, being a matter peculiarly within the knowledge of defendants, it devolved upon them to show that they were married. The court further instructed thejury that if they found that the female defendant habitually surrendered herself to the gratification of the male defendant for two weeks that would be sufficient to constitute the offense of fornication and adultery. The defendants excepted to the charge as given. Verdict of guilty, judgment, and appeal by defendants.

Douglass & Shaw, for appellants.

The Attorney General, for the State.

Clark, J., (after stating the facts as above.) It is said in McKinnon v. Morrison, 104 N. C. 354, 10 S. E. Rep. 513, affirming prior authorities cited, that "an unpointed broadside challenge to the charge as given" is too indefinite to be considered, and that "the law is well settled in this respect. " That case has been several times since cited and approved. The first prayer for instructions is legally correct. The state having given evidence of an offense committed in Moore county, any evidence tending to show fornication and adultery between the parties prior to the bar of the statute of limitations or in another county would be merely corroborative. State v. Guest, 100 N. C. 410, 6 S. E. Rep. 253. But it was not error to refuse a charge, however correct in law, which there was no evidence to support. Staton v. Mullis, 92 N. C. 623; Leak v. Covington, 99 N. C. 559, 6 S. E. Rep. 241. There was no evidence of the defendants "living together in Richmond county." The house to which the witness was invited in August, 1889, is not stated to have been in Richmond county. No inference is to be drawn that it was so located, for the presumption is that the charge was corrrect; but, indeed, if any inference is to be drawn, it is that the house was in Moore. The evidence is that the defendants were living in a one-room house on the western edge of Moore, in the spring of 1889, and there being no evidence of a removal when the male defendant invited witness home to the one-room house in August, it not being stated where the house was, there is no presumption that it was not the same house. The fact that defendants were at a church in Richmond county when such invitation was given does not supply the lack of evidence on the point, for we know judicially that Richmond county lies partly on the western edge of Moore. We concur with his honor in the instruction given in lieu of the second prayer for instruction. Whether defenda...