84 S.E. 768 | N.C. | 1915
The defendants, E. W. Wade and Pearlie Wade, were indicated for fornication and adultery, and from the judgment upon a verdict (307) of guilty as to the male defendant he appealed to this Court. There were circumstances from which the jury might have inferred his guilt, and evidence of this kind is sufficient to support a conviction. S. v. Poteet,
Underhill in his work on Criminal Evidence (sec. 381) says: "Direct evidence of the act of sexual intercourse can seldom be obtained. Hence, evidence of all the circumstances of the parties, their relations to one another, their domestic and social surroundings, their (308) acquaintance, conduct and familiarity, the facts that they went out together and visited each other, and often expressed a desire to be together, are relevant. Improper familiarities and adulterous acts between the same parties prior to or subsequent to the act charged, but not too remote, or, if remote, connected with it so as to form a part of a continuous course of conduct, may be shown for the purpose of bringing out the relations and adulterous disposition of the defendant." The Supreme Court of Michigan, in People v. Jenness, 305, at page 322, says that in the case of an indictment for this offense, "previous familiarity, and the general or habitual submission of the female to his (the defendant's) sexual embraces, must, in the nature of things, tend to render it more probable that like intercourse took place on the occasion charged. Such is the force and ungovernable nature of this passion, and so likely is its indulgence to be continued between the same parties, when once yielded to, that the constitution of the human mind must be entirely changed before any man's judgment can resist the force of such an inference to be drawn from previous acts of intercourse." These extracts, and the many cases cited in the notes to section 381 of Underhill on Cr. Evidence, show what great stress some of the courts have laid upon the fact of previous sexual intercourse as an important probative one; but this Court has held that such evidence is merely explanatory of acts and conduct within the two years, though the jury must find that the crime was committed within that period (S. v. Guest,
Defendant complains that the charge did not state his contentions fully and impartially, but laid more stress on those of the State. We have read the charge most carefully and have been unable to discover this fault. It appears to us to have been fair and just, clear and comprehensive, and arrayed the facts, which the evidence tended to prove, with perfect discrimination and proper application to the different phases of the case, giving to each side equal consideration. But if there had been any such omission, as is alleged by the defendant, it was his duty to call the attention of the court to it, by a request for more specific instructions, so that the judge could state his contentions more definitely and accurately. Jeffreys v. R. R.,
We have considered the position taken by the defendant's counsel in their well prepared brief, but have concluded that the trial was conducted in all respects according to law.
No error.
Cited: S. v. Herron,