Burroughs v. . Burroughs

BROWN AND WALKER, J. J., concurring. The facts are sufficiently stated in the opinion of the Court by Mr. CHIEF JUSTICE CLARK. The court charged: "Evidence to prove adultery may be direct, as where the parties are seen in the act, or it may be indirect or circumstantial, and the charge of adultery may be sufficiently proved by evidence of circumstances leading to an inference of guilt... (516) These facts and circumstances must lead your minds to the conviction of the truth; that is, the plaintiff must lead your minds to the conclusion that adultery was actually committed before you would be warranted in answering the third issue `Yes.' "We find no error in the above instruction. In S. v. Rinehart, 106 N.C. 790, Davis, J., says: "From the very nature of the offense, it is usually proven by circumstances, rarely by positive and direct evidence of the adulterous act," citing S. v. Eliason, 91 N.C. 566; S. v. Poteet, 30 N.C. 23. His Honor was simply telling the jury that circumstantial evidence would be sufficient to establish adultery, if it produced conviction in the minds of the jury, by a preponderance of the evidence. He had already charged them: "You must not only find that Mrs. Burroughs' conduct was *Page 421 indiscreet, but you must go further than that, and find more than that, more than that she smoked and drank and associated with Mrs. Carrigan and others, or that her conduct was not such as it ought to be, but you must be satisfied from the evidence and its greater weight" that she actually had illicit sexual intercourse with Mr. Galloway." His Honor, however, further charged the jury: "If an adulterous disposition on the part of the defendant and the alleged paramour is shown, and it appears there was an opportunity for them to commit the offense, these facts are sufficient to establish adultery." Taking the charge as a whole, we can hardly believe that the learned judge intended to express an opinion that an adulterous disposition and a convenient opportunity was sufficient evidence to establish adultery. But his language enunciates that proposition, and we do not think that it can be sustained. It is true, as Walker, J., well says, in Kornegay v.R. R., 154 N.C. 392, "We are not permitted to select detached portions of the charge, even if in themselves subject to criticism, and assign errors as to them, when, if considered with the other portions of the charge, they are readily explained and the charge in its entirely appears to be correct. Each portion of the charge must be construed with reference to what precedes and follows it," citing S. v. Lewis, 154 N.C. 634. But the paragraph above quoted is so calculated, though not so (517) intended, to mislead the jury, that we cannot feel sure that it was not misunderstood and may not have affected their verdict. Error.