State v. . Kincaid , 142 N.C. 657 ( 1906 )

CONNOR and WALKER, JJ., dissenting. The defendant contends that the Court erred in admitting testimony that he was living in fornication and adultery with Lillian Davis, and the brief of the defendant's counsel points (658) out the pages of the record alleged to contain such evidence. It is contended that such evidence is collateral to the issue and that it constitutes an attack on the defendant's character before he had become a witness and put his character in issue. Many authorities are cited in support of such contention, which it is unnecessary to review, as we think the counsel for the defendant have misconceived the purport and character of this evidence. It was brought out by the State, in chief, in the examination of the prosecutrix, who testified as to her seduction by the defendant, under promise of marriage, and the sexual intercourse with him had continued for some time. She says: "When I became pregnant I mentioned his promise to marry me. * * * He would say, `Wait;' and said he was in a mess with a Davis girl. * * * He said he would stop off from the Davis girl and come in a month or so or as soon as he could, * * * and that the Davis girl had broken open a letter I wrote him."

For the purpose of corroborating Ethel Hood, Mrs. Jennie Hood, her aunt, was permitted over the defendant's objection to testify: "Ethel told me she was going to marry Sidney Kincaid. I asked her when, and she said, `He says he can't marry now; that he was in trouble with the Davis girl.'" All this evidence was received before the defendant was offered as a witness. It was perfectly competent at the time it was offered, and the fact that the defendant afterwards, when examined in his own behalf, denied all relations with Lillian Davis, did not make it incompetent. These are declarations of the defendant to Ethel Hood; conversations with her, in which he gives his relations with Lillian Davis as an excuse for postponing the promised marriage with the prosecutrix. These declarations are a part of the resgestae, so to speak, acknowledging and renewing the obligation to marry, but at the same time offering his relations with Lillian Davis as a reason for putting off the performance of the promise. It is elementary (659) learning that declarations of a defendant pertinent to the issue, made in the hearing of a witness, are always admissible against him.S. v. Lawhorn, 88 N.C. 634.

The testimony of Mrs. Jennie Hood was not offered in any sense as "character evidence" against the defendant, but solely as corroborative evidence, tending to corroborate Ethel Hood's testimony as to the promise of marriage and why its performance was so long delayed. The record fails to disclose any testimony whatever as to the relations of the defendant with Lillian Davis, except the declarations of the defendant made to the prosecutrix, offered in chief by the State, as evidence of a promise to marry and as an excuse for postponing the ceremony.

During the argument before the jury, one of the counsel for the State was arguing that the defendant was now living in fornication and adultery with Lillian Davis, after debauching Myrtle Sudderth and seducing the prosecutrix. The defendant objected to the argument as to the defendant's living in fornication and adultery with Lillian Davis. The Court overruled the objection and allowed counsel for the State to proceed with his argument as to the adultery of the defendant with Lillian Davis, and the defendant excepted. We see no reason why the Court should have stopped counsel from commenting upon the defendant's relations with Lillian Davis and Myrtle Sudderth. He practically admitted his illicit relations with the latter, and that he left the State on account of them. His relations with Lillian Davis, proved by his declarations to the prosecutrix, were properly the subject of comment, and we can not see from the record that the counsel overstepped the bounds of legitimate criticism. S. v. Horner, 139 N.C. 603.

The defendant, being examined in his own behalf, was asked by the Solicitor of the State, if he had not transferred his property to avoid the result of this indictment. The defendant objected to (660) the question, and the objection was overruled. The witness said that he had done so, and the defendant excepted. We see as little merit in this exception as in the others in the record. It was competent to ask the defendant on cross-examination concerning his acts in reference to this charge against him. It would have been equally as competent to ask him if he had not fled from the charge.

We have examined each exception and find them all without merit. The case seems to have been fairly tried and we find

No Error.