State v. . McGlammery

Clark; C. J. This was an indictment for fornication and adultery. Tbe evidence of illicit conduct prior to tbe two years was competent in corroboration. S. v. Dukes, 119 N. C., 782. Tbe chief question presented is as to tbe sufficiency of tbe evidence of illicit acts within two years prior to tbe finding of tbe bill. Revisal, sec. 3147. Tbe evidence in such cases is rarely direct, and we think there was sufficient to justify tbe submission of tbe case to tbe jury. It was in evidence that tbe defendant is a negro and tbe codefendant is a white woman, Creóla Bullis; that she lived half a mile from McGlammery’s mother’s bouse and that she bad bad three children, who were all black; tbe defendant within a year past bad pictures of the children made by witness and paid for them and gave them to these children; that be bad also paid for taking other pictures of them. Another witness testified that be passed Creola’s bouse one night and beard some one talking; that be knew Coon McGlammery’s voice and thought that it was him, but will not swear positively that it was; that he heard Oreola’s little boy say, “Mamma, did he come home drunk ?” This was within tbe two years. Tbe taking of tbe pictures above detailed was about a year before the trial. It was further in evidence that tbe last child of Creóla died about a month before the trial, and was born March, 1916, and that all her children were black. Another witness testified that he bad seen Creóla at tbe home of Coon McGlammery’s mother, and that he bad seen them there together in conversation. Another witness testified that “All of Oreola’s children were dark skinned; that the last one was born about March, 1916; that she had no way, that the witness knew of, of making a living; that he had seen both defendants at Coon’s mother’s house on Sunday; that Coon was the only colored man in that section, or that was seen there.” *750 There was testimony in denial of the charge, but the jury have found upon, the above that the defendants were both guilty. The defendant Coon appealed from the judgment. This being the only colored man in that section, and the parties being seen together, taken with corroborative testimony of conduct prior to the two years, was sufficient to submit the case to the jury, in view of the color of the children and the fact that under the laws of this State there could have been no legal marriage between the parties. The exception of the defendant that the judge did not instruct the jury to consider the testimony prior to the two years as corroborative only and not substantive would have been good prior to the amendment of Rule 27 of this Court, 164’N. C., 548, that it is “not ground of exception that evidence was competent for some purposes but not for all, is admitted generally unless the appellant asks at the time of admission that its purpose shall be restricted.” This rule was adopted in March, 1904, and has been sustained by uniform decisions of this Court since that time. Westfeldt v. Adams, 135 N. C., 600; Hill v. Bean, 150 N. C., 437; Tise v. Thomasville, 151 N. C., 283. Besides, the judge did state that it was not substantive evidence. No error.