State v. . Aswell

Brogden, J. Exception No. 1 is to a portion of the testimony of a witness for the State as follows: “Soon after Joe Smith and wife came to live there, I spoke to him about a report that was circulated in the community. (Q.) What was the report? (A.) The people in the community said that it was improper for Joe Smith to live in the house with Mrs. Aswell.” Exception No. 2 was to the testimony of another State’s witness as follows: “Soon after the death of Mr. John Aswell reports were circulated in the neighborhood. (Q.) What was this report? (A.) It was reported that he was frequently seen in company with Mrs. Aswell.” The defendants in apt time objected to the testimony, and it was admitted as evidence in the case. The evidence objected to is no more than mere neighborhood rumor and community gossip, and was incompetent. Hopkins v. Hopkins, 132 N. C., 25; S. v. Holly, 155 N. C., 486; S. v. Jeffreys, 192 N. C., 190. The third exception relates to testimony of the wife of the defendant, Joe Smith, who was asked the following question: “(Q.) What presents, if any, did Mrs. Aswell give your husband? (A.) Just before conference she gave to him a Eord automobile and a suit of clothes. (Q.) After you moved back to Wayne County did you ever see your husband in company with Mrs. Aswell? (A.) Yes, after we moved back to Wayne County Mrs. Aswell would often drive by our house, which was situated on the Goldsboro-Snow Hill Highway; she would blow and my husband would go out to the car and talk to her.” Even if this evidence had any probative value at all or constituted a link in a chain of circumstances, it would be inadmissible, for the reason that the wife cannot testify against the husband in a case of this sort. S. v. Raby, 121 N. C., 682; Grant v. Mitchell, 156 N. C., 15; Powell v. Strickland, 163 N. C., 393. *401 The Assistant Attorney-General, with his usual candor, confesses error ' in the particulars mentioned. Indeed, there was no evidence warranting a submission of this case to the jury, and the motion for nonsuit should have been allowed. Eeversed.