State v. Still

• Decision Date: 08 December 1903
• Citation: 46 S.E. 524,68 S.C. 37
• Parties: STATE v. STILL et al.
• Court: South Carolina Supreme Court

46 S.E. 524

68 S.C. 37

STATE v. STILL et al.

Supreme Court of South Carolina

December 8, 1903

Appeal from General Sessions Circuit Court of Barnwell County; Gary Judge.

Lavinia Still and J. M. Lewis were convicted of crime, and appeal. Affirmed.

J. O Patterson and C. A. Best, for appellants. Asst. Atty. Gen Townsend, for the State.

GARY A. J.

The defendants were convicted of adultery, and have appealed to this court upon exceptions, the first two of which raise the question whether it was competent for the state to prove the fact of marriage by general reputation and the declarations of the parties. The defendants contended that "marriage in a criminal action, cannot be proved by hearsay evidence, but that the witnesses who were present are the proper parties to prove it by, if there was ever any marriage." The rule of evidence in cases of adultery is the same as that in bigamy, and, whatever may be the rule elsewhere, it is settled in this state that the fact of marriage may be proved by general reputation and the declarations of the parties. State v. Briton, 4 McCord, 256; State v. Hilton, 3 Rich. Law, 434, 45 Am. Dec. 783. This principle is also sustained by numerous other decisions, among which may be mentioned Miles v. United States, 103 U.S. 311, 26 L.Ed. 481, and Wolverton v. State (Ohio) 47 Am. Dec. 373.

The next assignment of error is: "Because his honor erred in charging the jury that 'the defendants at the bar admit they are married.' Whereas it is respectfully submitted that this was erroneous, as the defendants did not testify or make any admissions." This will be considered in connection with the remaining assignment of error, which is as follows: "Because his honor erred in charging the jury: 'Was Lavinia Still lawfully married at the time that she and her codefendant married?' Whereas we respectfully submit that this was charging upon an assumed fact, which was erroneous, and calculated to mislead the jury, in that it indicated that the fact of the marriage was established by evidence." If, in stating to the jury the issues involved, the presiding judge erred in supposing that the defendants admitted they were married, it was their duty to have called the alleged error to his attention, and, having failed to do so, they cannot make his charge in this respect the basis of an appeal to this court. We reach this conclusion with less reluctance, as the jury might have found...