State v. Hill , 241 N.C. 409 ( 1955 )

85 S.E.2d 411 (1955) 241 N.C. 409

STATE
v.
Delos Avern HILL, Jr.

No. 725.

Supreme Court of North Carolina.

January 14, 1955.

Atty. Gen. Harry McMullan and Asst. Atty. Gen. Claude L. Love for the State.

Spears & Spears, Durham, for defendant, appellant.

PER CURIAM.

G.S. § 8-57, since the 1951 amendment, provides expressly that a wife is a competent witness against her husband in a criminal prosecution for bigamous cohabitation under G.S. § 14-183 "to prove the fact of marriage." Here the wife's testimony goes beyond the prescribed limit. This is conceded by the Attorney-General.

In State v. Setzer, 226 N.C. 216, 37 S.E.2d 513, 514, this Court conceding, without deciding, that G.S. § 8-57, before the 1951 amendment, made the wife a competent witness "to prove the fact of marriage" in a prosecution for bigamous cohabitation as well as in a prosecution for bigamy, construed the statute as meaning (1) that she was a competent witness only to facts tending to show that she and defendant had been legally married, and (2) that her testimony beyond this limit, e. g., as to absence of divorce proceedings wherein she was plaintiff or defendant, was incompetent. It is noteworthy that the 1951 amendment, Ch. 296, Session Laws of 1951, of G.S. § 8-57 did not in any way enlarge the meaning of the phrase, "to prove the fact of marriage," as construed in the Setzer case.

Should G.S. § 8-57 be amended so as to facilitate prosecutions for bigamy and bigamous cohabitation by making the wife a competent witness against her husband to prove (1) that she and defendant had been legally married, and (2) that they are now legally married, i. e., facts within her knowledge tending to show the absence of divorce proceedings wherein she was plaintiff or defendant? This is a question for consideration by the General Assembly.

Under G.S. § 8-57, as construed in the Setzer case, incompetent evidence, prejudicial to defendant, was admitted, necessitating a new trial.

New trial.