*1 TERM, 1897. v. Melton. would be' election evidence different If that was allowed the defendant offences. might offences, for the when he had several committed prosecuted one. State v. Williams, C., 753; State only Parish,
No Error. STATE v. ALLEN MELTON.
Indictment Competent for Wife Bigamy Bigamy—Evidence— — to Witness Prove Marriage Marriage —Record —Admis-
sions— Witness —Slave Marriages Exception. — bigamy 1. In an indictment for the first of the defendant is a com- .wife prove petent marriage, public witness to cohabitation as being public acknowledgments man and wife of the relation and not-coming within nature of the confidential relations which policy give of the to law forbids either in evidence. county book of prove The record is admissible to a signed by' justice original solemnizing 3. The license prove marriage, though to is admissible neither the justice attesting being nor the as present witnesses certificate present at the are court. bigamy, 4. In of an the trial indictment the admission competent against him, of his former though may statement have to such referred the relations which he and other, his former wife sustained to man each slavery times. charged bigamy, upon a defendant with 5. Where the preliminary ex- peace, amination before and after cautioned against him, could that his statements be used stated that he had married to his former while a Carolina, wife in South slave subsequently had children her North Caro- competent lina to his such admissions were go Court, Superior trial guilt. his IN THE SUPREME COURT. *2 bigamy, Where, trial of a for one testified on the defendant witness 6. thirty-nine years to first had been married wife that defendant years two the trial that another had admitted he and appeared testified on living, and it the defendant had wife peace to such preliminary examination before slaves, proper to refuse while and she were it was first evidence, that, not convict. could an instruction persons to live to- were married while slaves continued Where 7. they were, man and wife after the abolition of gether as 18G6,legally Acts of married and acknowl- of Ch. virtue necessary. edgment before officer ” exception is invalid and will be con- An “ 8. sidered. bigamy contain an averment that the need not An indictment
9. from his that is had not been divorced first since of defence. matter J., J., dissenting. Douglas, C. Faikclotii, J., tried before and a Coble, INDICTMENT bigamy, Term, 1897, ÁNsoN Court. Superior at January Zeb for the Wdlser, V. State. Mr. General Attorney Bennett, for Mr. B. T. appellant. indictment for the first is In an wife bigamy J.:
ClaeK, Code, to The witness prove a competent In- v. McDuffie, Section cohabitation as man wife deed, public the relation do not acknowledgments are pubilc nature of the confidential relations between within the come law has forbidden which always them policy'of This of the first four to evidence. either give disposes exceptions. the second
The fifth proving exception for, the is not well book of county the record sisth same is true of the which was The exception, taken. license of the original the admission signed by nor it same, necessary solemnizing the justice TERM, v. Melton. the said nor the witnesses justice, certificate attesting at the be in should count. marriage, “witnesses of the who law,” court, must be oc their ab for, sence accounted are the to a witnesses deed, subscribing bond or and that is will, because are selected to prove the execution of such But here it is not instrument. execution of the certificate which is proved. certificate filed in the and the office registration Register’s thereof are record both evidence of the and the marriage, from such evidence till “the regularity con presumed *3 be shown.” State 109 N. C., v. trary Davis, The seventh was that a witness testified exception t!hat “the defendant and Harriet MeLton married about 39 that were married about miles from years; five they Ches- terfield, C. that about H., Carolina: two years ago the defendant stated he had another wife at the and time; that defendant Harriet Mel- being present ton were slaves when were married.” The admission they the defendant of his former by evi- competent dence him. 110 against Wylde, C., 500, and In numerous cases there cited. the examina- preliminary tion before the the defendant asked to be allowed to and him cau- justice, having testify, ordinary him that tion and also cold whatever he would having say him in a court, could be used the defendant higher against married in testified he Chester S. county, to Harriet Melton while were slaves and had raised that in 1894 he some children and her, Delia These admissions were Ann Teel North Carolina. com- State v. Wylde, jury. supra, petent go Am. and cases 196, cited. Enc., Eng. the court to instruct The defendant prayed jury and their of the slaves “that living together and wife while in a relation husband in the state of 120—75 THE SUPREME COURT. IN v. Melton.
State wife not constitute the relation husband to intro- the omission of the State Carolina; in North lau in South Carolina before duce any the decisions leaves governed jury law this in South this laws valid the whole evidence one; was not a ex- cannot The defendant in this case convict.” to the refusal of this If thereof part prayer. any cepted it was not error to refuse incorrect, it. defend witness, Streator, testified that the having of his second admitted, ant two years ago presence he had another wife this admission was living, to submit who will “determine competent w what he said was admission that had been hether Simonds, married.” v. Kir., Car. and Regina legally 164, S., 103 and Miles v. U. U. and other cases S., in State This admission does not cited Wylde, sivpra. name of first wife, nor does tbe indictment specify it is her name and out that it should. necessary set Law, Davis, Wharton C., 780; Or. therefore, there cited. It cases not error to re was, *4 which contained instruction “that prayer fuse upon whole evidence State cannot convict.” witness, testified that Streator, and Melton had been married 39 and that de- Harriet years, in admitted, two of his se- ago fendant years presence he had that another wife and the defend- cond living, testified that he had before married magistrate ant said Carolina while in'South were slaves and had they Harriet children her. several instruction prayer raised in that erroneous it asked the court to is further invalid in was North such Carolina. There evidence in ample justify was finding continued after 1866, there was further cohabitation ' TERM, N. 595 evidence that “lived and had together many years they that two he admitted several children;” years ago having tend and also evidence from the defendant another between 1861 and to show that the ing the relation to continue Indeed, having begun presumed till evidence to the married North contrary, persons who continued to cohabit after Carolina while slaves, abolition of ipso legally (Act facto Oh. before officer 40) acknowledgment was essential. “The before the complete made the clerk, even acknowledgment” prescribed if were not made at all. State such acknowledgment 65 C., 636; N. Adams, C., 537; Whitford, 87 Jones v. Barnes, Long Hoggard, Kirk, v. State, Ga., 159. these C., 178; authori By if the defendant married in ties, South having Harriet, while had cohabited North Carolina slaves, there was evidence to show they Carolina, could have been convicted of fornica- they back tion and dated adultery, validity and their children all the to its inception rights Our Statute of 1866, owing peculiar legitimates. as to such of slave status marriages, adopted iu has New York and Scotland, rule which long prevailed which was the rule of the other States civil several (and law till the Council of of the Canon Trent), law constitutes a followed cohabitation, consent, legal 515. The Enc., Am. defendant’s Eng. riage. further erroneous therefore, was, virtually ting prayer from the take the case the court to jury by telling them find the facts should there *5 to the no valid laws and marriage “according prior of the absence of this State.” If, decisions proof, invalid in is to be deerr ed slaves between Caro- riage IN SUPREME COURT. THE liria, reason, for the same Carolina, invalid North because such continued cohabitation of of in the absence proof, because such 1866 constituted legal marriage parties here. the law is uni has been to the as “charge
The exception given1’ than in more indeed, formly held, fifty repeatedly has, this to be invalid. The court, of Legislature decisions in all ten after the cases besides, days, appellant court,, of in which to set out over ponder adjournment all other error his charge, though assignments Elliott, to at the trial. Lowe matters must be excepted 718; 116 N. v. Ins. C., Co., C., Blackburn for after ten allowed days "When, exceptions specific is “to the as only error assigned charge given,” charge, to it we can take the as at most excepting only appellant it did not contain his or because prayer, containing instruction, is, further; simply opposite for the refusal to prayed. exception duplicates that the indictment should contain an It necessary had not been divorced from his that the defendant averment is a matter of defence, first though ap the offence Code, in the section denouncing (The pearing thereof. State v. Norman, it is proviso 988) C., Davis,
No Error. J., I cannot assent to the con- C. dissenting: Faxeoloth, I do not court this case. question clusion wife to the fact of of either prove competency of the defendant’s admis- do not doubt I competency do not doubt that it are. I whatever sions, to determine question province the law instructions as to arising upon .under proper contention is the evidence. as shown My facts *6 TERM, N. Melton. v.
when two of a case are the the aspects presented by proofs, court in should “state and correct manner the evi- plain dence and declare and case, the law explain Oocle, thereon” and that he should do so arising 413), (The each of the case the evidence. upon aspect presented by “Where the evidence case two it presents aspects, for the trial proper judge charge jury upon law as it arises both and then leave the upon aspects, ques ’’ tion of fact to be on v. passed by jury. Spence Clapp, 95 N. C,, 545.
“Where the evidence case two presents aspects, the trial should both judge of aspects the case.” 97 Gilmer, State v. N. 429; C,, State v. Matthews, 98 N. Brewer, State v. 78 N. C., 523; State v. 65 N. v. C., 288; State Dunlop, Cardwell, C., 245.
“Where defendant asks a instruction to special of the case which is jury upon aspect presented evidence, the court does it which is error, and en give, titles the defendant to a new trial.” Gaskins, Pool, C., 547; C., 404. Bailey
The common law of into all England imported Union, States of this and this court has held repeatedly that it is continue such States until it is presumed evidence that it shown common by propel has (the law) It Statute. is true that changed slavery Statutes, largely regulated by especially restrictions but still the common law it, to slaves imposed applied tried murder and other many They respects. crimes to the facts and the same com- high according mon law evidence as other classes. It was principles law that their the same were allowed no legal significance. in this
“The slaves co- consisting of their habitation merely, by permission owners, does IN THE SUPREME COURT. *7 constitute relation of husband and wife so as to at them the tach to disabilities incident to that privileges the common law. it relation Hence was held that a who was the wife of another evi slave, slave, give might ’ him in a dence even case.1 capital Samuel, against 19 N. C., introduced Harriet
The State who testified that JVIelton, and the defendant were both and that were slaves, she they times” in Carolina; South that “during slavery she with lived him, defendant, many in South- him; Carolina and children years was at the time of the “a defendant slave thereafter.” There was it evidence, was ad- years 1891 the defendant married Delia Ann mitted Teel Carolina, and that about in North two yeajrs said, ago of his last that he had another wife. presence was allowed to as to peace testify orally and said if him, trial before his statement showed he married Harriet said between it defendant said he Another witness knew the was true. defendant and were married as slaves in South Harriet; Carolina; they about 39 were married There “that was no years.” inference from the that the above, defend- except proof, Harriet ever lived or- cohabited after ant and together abolished. our Act 1866, Ch. wiien By slavery slaves, who had lived previously slavery emancipated to live should continue re- man and together deemed should be have lation, they lawfully for failure to their were inten- punishable register ried, Code, Section tion of so continuing. offered, received at no evidence or trial,
There South law in Carolina rela- concerning either or since before slaves, tion emancipated emancipa- instructed as to the law on nor was the the sub- tion; TERM, 1897. N. C.] and Har- whether the defendant to determine but left ject, reference without any married” riet Melton “legally or after to their status emancipation. (and there had been
If legislation of slave status marriages, on the none was shown) remains, and common perhaps then the presumption law a husband, in that instead if con- cohabitation of fornication adultery, was guilty he became a freeman. tinued after “That instruction: for this asked The defendant special in the re- and their of slaves together living *8 while a state slavery of husband and wife lation in North and wife the relation of husband not constitute of the in this on the that the omission case, part Carolina; Caro- the law of evidence of South State, to introduce any to be leaves the by jury governed lina jury, mar- law in this law this by decisions -wasnot a valid one; upon riage in this-case the State cannot convict.’’ whole evidence Honor instructed refused, jury This was them from the must satisfy beyond “the that the defendant was doubt reasonable legally any * * * that the de- Melton as ried to Harriet charged; to Harriet and that Melton, during fendant was married he married Delia Ann then the life of said Harriet Teel, will find the defendant The latter jury guilty.” part as asked, instructions distinct if had of the 1 and is too to be been numbered considered and general bemay disregarded. consider and then to determine jury whether
the defendant and Harriet were married. The fact legally contract found marriage may parries jury, but whether or not is for the court. legal called attention to the fact of The special agreement prayer IN TI-IB SUPREME COURT.
State and their relations and it marry slavery, impor- tant for them to knov? whether those facts constituted a legal were not informed. were not marriage. They They even, what acts and informed, facts after would emancipation constitute a When the legal defendant admitted he had another that mean his wife in slavery or his wife continuance relation if there difference in South any Carolina? That was for the with directions proper from the court the law to each con- applicable dition. the admission Suppose jury that he thought had another wife had reference to his slave wife, as he might have still the naturally done, were at jury liberty find him guilty aught appears charge, the refusal to give them the do special prayer. not know and cannot know the law of South Carolina with- out the aid or court this other any question.
I think his Honor should have the law on each explained phase question evidence. presented by-the The ele- ment of and its slavery does enter into changes authorities relied the court. *9 J.: I concur in the dissenting ihe opinion
Douglas, Chief Justice.