State v. Parker

• Decision Date: 05 May 1890
• Citation: 11 S.E. 517,106 N.C. 711
• Court: North Carolina Supreme Court
• Parties: State. v. Parker.

11 S.E. 517

106 N.C. 711

State.

v.Parker.

Supreme Court of North Carolina.

May 5, 1890.

Bigamy—Marriage—Evidence.

1. A witness cannot testify as to the age of defendant from information received from the latter's sister, who is not dead.

2. Error in admitting evidence as to the age of defendant, on trial for bigamy, is harmless where it appears that she lived with her first husband 20 years, as that would amount to a ratification of the marriage, though she were under age when it took place, though such marriage might have been " declared void " under Code N. C. § 1810.

8. Under Code N. C. § 1813, forbidding any officer or minister to perform the ceremony of marriage unless a license is produced, failure to require the license does not invalidate the marriage.

4. A colored preacher who is an elder of the Colored M. E. Church comes within Code N. C. § 1812, authorizing the solemnizing of marriage by " an ordained minister of any religious denomina-tion;" it appearing from the Book of Discipline that such elders are always ordained.

5. An exception "to the charge as given" is too general, especially when the whole charge is not sent up with the record.

Appeal from superior court, Cumberland county; Bynum, Judge.

Indictment for bigamy.

The Attorney General, for the State.

Sutton & Cook, for defendant.

Clark, J. The first assignment of error is that a witness for the state was allowed to testify, after objection, that the defendant was 40 years of age, and that he stated this upon information had from defendant's sister. As it did not affirmatively appear that the sister was dead at the time of the trial, the evidence was improperly admitted. Hodges v. Hodges, ante, 364, (at this term,) and cases there cited. But the evidence was merely irrelevant; and, as it could not have prejudiced the defendant, its admission affords no ground for a new trial. Scoggins v. Turner, 98 N. C 135, 3 S. E. Rep. 719; Jones v. Call, 93 N. C. 170; Dupree v. Insurance Co., 92 N. C. 417. And the burden is on appellant to show that he has been prejudiced by the admission of immaterial evidence. Livingston v. Dunlap, 99 N. C. 268, 6 S. E. Rep. 200.

The defendant had testified that she was 36 years old at the trial, with the view of showing that she was about 13 years of age at the time of the alleged first marriage. The evidence was conflicting as to whether there was a first marriage, and as to its date. The jury, upon the evidence, found that there was such first marriage. This being so, it is immaterial whether defendant, at its date, was 13 years of age, as she contends, or over 14, as contended by the state; for, upon any view of the evidence, the defendant had lived with such husband over 20 years, and has borne him 10 children. While marriage is a contract, it differs from other contracts in several respects, especially in that it can be entered into by minors. Code, § 1810, it is true, provides that a marriage by a female under 14 years of age, or a male person under 16, is void; but the proviso speaks of its being "declared void, " and the construction of the statute by the courts has always been that the meaning is that such marriages are voidable. The only marriages, under section 1810, which are absolutely void, are those between a white person and one of negro or Indian blood— or descent, to the third generation, inclusive— and bigamous marriages. The others need to be "declared void." That has not been done here, and defendant's first marriage is still a valid one. Indeed, it may be doubted if it can be declared invalid when the parties have ratified it by cohabitation after arriving at the age of consent. If the parties, after arriving at the above specified age of consent, continue to...