State v. . Guest

Davis, J., (after stating the facts). The first exception is, -to the competency of the husband of the co-defendant, to testify against, not his wife — for upon her plea of guilty, there was an end of the trial as to her — but against the defendant Guest, who alone is upon trial. It is settled, that persons indicted for fornication and adultery, may be tried separately, and though, from the very nature of the offence, one cannot be convicted after the acquittal of the other, nor, when tried together, can one be convicted and the other acquitted, yet when tried alone one may be convicted and punished, and even when tried together .and convicted, and one of them appeals, judgment may be had against the other. State v. Lyerly, 7 Jones, 158; State v. Parham, 5 Jones, 416, and cases cited. In the case of State v. Phipps, 76 N. C., 203, a nol. pros. was entered as to the female defendant, and she was allowed to testify, and prove the offence charged against the other defendant. We think the husband was a competent witness, and his evidence could not militate against his wife. He was not testifying against her. The exceptions to the evidence of acts anterior to the period when the statute would bar, and acts beyond the limits of the county of Transylvania, though within two years, may be considered together. “When the fact of adultery is alleged to have been committed within a limited period of time, it is not necessary that the evidence should be confined to that period, but *413 proof of facts anterior to the time alleged may be adduced in explanation of other acts of the like nature within the period. Thus, when the statute of limitations was pleaded, the plaintiff was permitted to begin with proof of acts of adultery committed more than six years preceding, as explanatory of acts of indecent familiarity within the time alleged.” 2 Greenleaf’s Ev., § 47. In our own reports, State v. Kemp, 87 N. C., 538, and State v. Pippin, 88 N. C., 646, are conclusive as to the admissibility of antecedent acts, as shedding light upon acts within the time limited; and acts committed without the limits of the county are admissible for the same purpose. As evidence, they can only be considered by the jury in determining the character of the acts committed within two years, and within the County of Transylvania, of which there must have been some evidence. They must convict or acquit, as the facts alleged are or are not proved beyond a reasonable doubt to have been committed within two years, and within the county, and the evidence was admissible in this point of view and no other, and, under the instructions of the Court, it was properly submitted to the jury. The motion in arrest of judgment was properly refused. The indictment clearly charges the offence, and that the defendants were not united in marriage. The use of the word “spinster,” after the name of the woman, could not mislead. To arrest the judgment would be an exceeding “refinement,” and under § 1183 of The Code, an absolute mockery. State v. Tally, 74 N. C., 322; State v. Lashley, 84 N. C., 754; State v. Newmans, 2 Law Rep., 74. There is no error. Judgment affirmed.