(State v. Eliason, 91 N.C. 564" court="N.C." date_filed="1884-10-05" href="https://app.midpage.ai/document/state-v--eliason-3677254?utm_source=webapp" opinion_id="3677254">91 N.C. 564; State v. Case, 93 N.C. 545" court="N.C." date_filed="1885-10-05" href="https://app.midpage.ai/document/state-v--case-3670104?utm_source=webapp" opinion_id="3670104">93 N.C. 545; State v.McNeill, 75 N.C. 15" court="N.C." date_filed="1876-06-05" href="https://app.midpage.ai/document/state-v--mcneill-3641469?utm_source=webapp" opinion_id="3641469">75 N.C. 15; State v, Jackson, 82 N.C. 565" court="N.C." date_filed="1880-01-05" href="https://app.midpage.ai/document/state-v--jackson-3662807?utm_source=webapp" opinion_id="3662807">82 N.C. 565; In re Brittain,93 N.C. 587" court="N.C." date_filed="1885-10-05" href="https://app.midpage.ai/document/in-re-brittain-3657743?utm_source=webapp" opinion_id="3657743">93 N.C. 587, cited and approved).
The facts are stated in the opinion.
The defendants are indicated for the offence of (662) fornication and adultery. On the trial, it was admitted that they
were not married to each other. The State offered evidence to prove that the male defendant had a living wife and the feme defendant had a living husband at the time of the offence. The defendants objected to this evidence but the Court admitted it, and the defendants thereupon excepted.
A motion for a new trial was overruled, and there was judgment that the defendants each be imprisoned in the common jail of the county four months. They insisted that this judgment was not authorized by law, excepted and appealed to this Court.
The evidence objected to was relevant and competent, because it tended to prove the important material facts to be proved by the State, that the defendants were not married to each other. If the male defendant, at the time of the offence charged, had a living wife other than the feme
defendant, and she then had a living husband, then they could not be married to each other. The facts might thus be proved. State v. Eliason, 91 N. c., 564; State v. Case, 93 N.C. 54; It would seem to have been unnecessary to receive it, as a fact that the defendants were not married to each other was admitted. But as it was such as might be admitted, it was not error to receive it on the trial — it had only a cumulative effect.
The judgment is unobjectionable. The statute (The Code, § 1041) defining the offence of fornication and adultery, declares that it shall be a misdemeanor, but it prescribes no particular punishment. The statute (The Code, § 1097) provides that in case of misdemeanor, or where no special punishment is prescribed, the offence shall be punishable as misdemeanors at common law; hence punishment by imprisonment in the common jail for a period in the discretion of the Court is allowable. State v. McNeill, 75 N.C. 15" court="N.C." date_filed="1876-06-05" href="https://app.midpage.ai/document/state-v--mcneill-3641469?utm_source=webapp" opinion_id="3641469">75 N.C. 15; State v. Jackson, 82 N.C. 565.
(663) It appears in the record, that at first the Court imposed the punishment of seven months in the common jail. Afterwards during the term, the measure of time was reduced to four months. It was competent to thus modify the judgment; In re Brittain, 93 N. c., 587.
There is no error. Let this opinion be certified to the Superior Court, according to law.
No error. Affirmed.
Cited: S. v. Yarboro, 194 N.C. 511.