12 S.E. 83 | N.C. | 1890
It was in evidence that, in the spring of 1889, the defendants lived together in a small house, containing one room, near the 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 (886) 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 had but one room; that the defendants were not married, as he knew.
Another witness, one Hackey, testified, without objection, that he and female defendant were lawfully married twenty 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 been committed 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 the jury 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. *608
(887) The defendants excepted to the charge as given. Verdict of "guilty." Judgment. Appeal by defendants.
It is said, in McKinnon v. Morrison,
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. S. v. Guest,
We concur with his Honor in the instruction given in lieu of the second prayer for instruction. Whether defendants were married or not was a matter peculiarly within their knowledge. If married, they could have easily shown that fact and at once have put an end to the proceeding. They were themselves competent witnesses. To call upon the State to prove a negative of this character would virtually repeal the statute. Parties might come to this State from other States or foreign countries, or indeed, from distant counties in this State. The State could not possibly prove, in many cases, that the parties had at no time and in no place ever been married. This construction would license concubinage. On the other hand, it is no hardship on the defendants, when so charged *609
with a scandalous offense, to prove that they live in honorable wedlock. A similar rule and for the same reason prevails in indictments for retailing without license. If the retailing is shown, the burden is on the defendant to show that he has license so to do. S. v. Morrison,
"The State need not prove that the defendants are unmarried. It will be presumed such is the case till defendants offer proof to the contrary." 8 A. E., 563; Bishop Statutory Crimes, sec. 693.
Two other reasons are also to be given for this rule. In a recent case in New Jersey, for this offense, it is said: "The single state is natural, and during early life, the only possible one, nor is there any period at which it is necessarily terminated or merged in marriage. In the absence, therefore, of testimony tending to the contrary, the presumption is that the celibacy which exists in youth continues. Therefore, until drawn in question, no affirmative testimony on this point was required from the prosecution." S. v. Gaunt,
In civil cases the party who claims property, legitimacy or benefit under and by virtue of a marriage, has the burden of proving it. The objection is urged that the adoption of the same rule in criminal cases would enable grand juries to indict any married couple in the state. This is to presume that grand juries and solicitors are corrupt, or actuated by malice. In practice it will be found, as has been the experience in regard to retailing without license, that those who are dealing legitimately have no motive for concealment, and that grand juries and solicitors will respect the limitations of their duty. Indictments will not be found except in those cases in which an investigation is demanded by the surrounding circumstances, and in those very rare cases in which it will be found that the indicted parties were in fact married, it is better that they should show their status as married people, a fact which is best known to themselves, than that justice should fail in numberless cases by the State being burdened, not with proving the res gestae of the offense, but with tracing the previous lives of the parties to show non-marriage, which would often be utterly impracticable. The experience of the lower courts is that, in ordinary cases, the marriage of *610 the defendants is, in fact, scarcely ever relied on, but the defense is that the parties do not cohabit, the burden of proving which lies upon the State.
(890) The defendants except here, for the first time, to the evidence of the witness who testified that he was the husband of the feme
defendant, and rely upon S. v. Ballard,
SHEPHERD, J., dubitante. No error.
Cited: S. v. Peebles,
