State v. . Wade

■Walker, J. Tbe defendants, E. W. Wade and Pearlie Wade, were indicted for fornication and adultery, and from tbe judgment upon a *307 verdict of guilty as to tbe male defendant be appealed to tbis Court. There were circumstances from wbicb tbe jury might have inferred bis guilt, and evidence of tbis kind is sufficient to support a conviction. S. v. Poteet, 30 N. C., 23; S. v. Eliason, 91 N. C., 564; S. v. Rinehart, 106 N. C., 787. Tbe judge permitted tbe State to prove that defendant bad separated from bis wife and failed to support her and her children, who were begotten by him, for ten or twelve years, and, in tbe charge, be stated that tbe prosecution relied upon that circumstance as one to be considered by tbe jury in passing upon tbe defendant’s guilt; but tbis was not irrelevant, as urged by tbe defendant, and was not introduced by tbe State for tbe purpose of contending that because guilty of tbe offense of abandoning bis family, be was also guilty of tbis offense. It was a circumstance leading up to bis immoral and illicit relations with bis codefendant, and tbe first link in tbe chain of evidence pointing to bis guilt. If be bad been a faithful and dutiful husband and father, instead of deserting bis borne and seeking another where bis paramour lived with him, tbis charge would never have been made against him. Tbe case states: “That tbe defendant is a married man; that be has a wife and children living upon an adjoining plantation; that tbe other defendant is a single woman; that for ten or twelve years she has been living in bis bouse or upon tbe land rented- by him; that be does not support bis family — his wife and children; be leaves that to bis fatber-in-law; that they (defendants) have been seen about bis place together; that she is seen cooking and washing at a place rented by him; that they eat at tbe same table; that they work in tbe fields together; that during tbe time that she has lived upon bis premises she has given birth to five illegitimate children; that these children have been seen crawling to bis lap and calling him papa.” It was competent, of course, to show that tbe defendant was a married man, and bad not been divorced, but bad merely separated from bis wife, as it tended to prove an allegation of tbe indictment, that tbe two defendants were not married to each other, as they could not be, under such circumstances. S. v. Martin, 95 N. C., 66. If a married man with children abandons bis family and consorts with a loose woman, whose lewd character is shown by her having bad five children by him, all of whom be recognizes as bis own offspring and fondles with affection, and by whom, from time to time, be is called “father,” and be continues to live under tbe same roof with their mother, in close proximity, working, and eating with her, spending bis money on her and not on tbe support of bis wife and legitimate offspring, it is not a strained deduction from these facts that he has continued her in bis service as bis -mistress. S. v. Chancy, 110 N. C., 507. Underbill in bis work on Criminal Evidence (sec. 381) says: “Direct evidence of tbe act of sexual intercourse can seldom be obtained. Hence, evidence of all tbe circumstances of tbe parties, their relations to one *308 another, their domestic and social surroundings, their 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 Or. 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, 110 N. C., 410), and it was so treated by the presiding judge. Defendant complains that the charge did not state his contentions fully and impartially, but laid more stress on those of the State. ¥e 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., 158 N. C., 215; S. v. Cox, 153 N. C., 638; S. v. Blackwell, 162 N. C., 672. The exceptions directed against the general structure of the charge cannot be entertained, as the particular error must be pointed out. A “broadside” attack upon the charge is not permissible. S. v. Johnson, 161 N. C., 264; S. v. Cameron, 166 N. C., 379. The judge sufficiently instructed the jury that the illicit association of defendants more than two years before this prosecution was commenced could only be considered as explanatory of what occurred since, and in this respect complied with the rule of this Court. 164 N. C., 548. *309 Tbe evidence was sufficient to convict. S. v. Chancy, 110 N. C., 507; S. v. Rinehart, supra. We have considered the positions 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.