Burke County NcArchives Court.....Sidney Kincaid, State V. 1906 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a December 5, 2011, 10:17 am Source: N C Reports Written: 1906 State v. Kincaid (Filed December 4, 1906) Seduction Under Promise of Marriage - Evidence - Corroborating Testimony - Comments of Counsel 1. In an indictment for seduction under promise of marriage, evidence offered by the State before the defendant had become a witness, of his declarations to the prosecutrix acknowledging the obligation to marry her, but giving his relations with another woman as an excuse of postponing the ceremony, was competent. 2. For the purpose of corroborating the prosecutrix, it was competent for her mother to testify that the prosecutrix told her that she was going to marry the defendant, but that he could not marry her then, as he was in trouble with another woman. 3. In an indictment for seduction under promise of marriage, the defendant's illicit relations with another woman, proved by his declarations to the prosecutrix, were properly the subject of comment by counsel. 4. In an indictment for seduction under promise of marriage, it is competent to ask the defendant on cross examination if he had not transferred his property to avoid the result of the indictment. Indictment against S. A. Kincaid, heard by Judge M. H. Justice and a jury, at the March Term, 1906, of the Superior Court of Burke. The defendant was convicted of the crime of seducing one Ethel Hood under promise of marriage, and from the sentence imposed he appealed. Robert D. Gilmer, Attorney General, and Isaac T. Avery for the State. Self & Whitener and S. J. Erwin for the defendant. NC Supreme Court Justice Brown, J. - The defendant contends that the Court erred in admitting testimony that he was living in fornication and adultery with Lillian Davis, and the brief of the defendant's counsel points out the pages of the record alleged to contain such evidence. It is contended that such evidence is collateral to the issue and that it constitutes an attack on the defendant's character before he had become a witness and put his character in issue. Many authorities are cited in support of such contention, which it is unnecessary to reviewed, as we think the counsel for the defendant have misconceived the purport and character of this evidence. It was brought out by the State, in chief, in the examination of the prosecutrix, who testified as to her seduction by the defendant, under promise of marriage, and that sexual intercourse with him had continued for some time. She says, "When I became pregnant I mentioned his promise to marry me. He would say, 'Wait'; and said he was in a mess with a Davis girl. He said he would stop off from the Davis girl and come in a month or so or as soon as he could, and that the Davis girl had broken open a letter I wrote him." For the purpose of corroborating Ethel Hood, Mrs. Jennie Hood, her aunt, was permitted over the defendant's objection to testify: "Ethel told me she was going to marry Sidney Kincaid. I asked her when, and she said 'He says he can't marry now; that he is in trouble with the Davis girl." All this evidence was received before the defendant was offered as a witness. It was perfectly competent at the time it was offered, and the fact that the defendant afterwards, when examined in his own behalf, denied all relations with Lillian Davis, did not make it incompetent. These are declarations of the defendant to Ethel Hood; conversations with her, in which he gives his relations with Lillian Davis as an excuse for postponing the promised marriage with the prosecutrix. These declarations are a part of the res gestow, so to speak, acknowledging and renewing the obligation to marry, but at the same time offering his relations with Lillian Davis as a reason for putting off the performance of the promise. It is elementary learning that declarations of a defendant pertinent to the issue, made in the hearing of a witness, are always admissible against him. The testimony of Mrs. Jennie Hood was not offered in any sense as "character evidence" against the defendant, but solely as corroborative evidence, tending to corroborate Ethel Hood's testimony as to the promise of marriage and why its performance was so long delayed. The record fails to disclose any testimony whatever as to the relations of the defendant with Lillian Davis, except the declarations of the defendant made to the prosecutrix, offered in chief by the State, as evidence of a promise to marry and as an excuse for postponing the ceremony. During the argument before the jury, one of the counsel for the State was arguing that the defendant was now living in fornication and adultery with Lillian Davis, after debauching Myrtle Sudderth and seducing the prosecutrix. The defendant objected to the argument as to the defendant's living in fornication and adultery with Lillian Davis. The Court overruled the objection and allowed counsel for the State to proceed with his argument as to the adultery of the defendant with Lillian Davis, and the defendant excepted. We see no reason why the Court should have stopped counsel from commenting upon the defendant's relations with Lillian Davis and Myrtle Sudderth. He practically admitted his illicit relations with the latter, and that he left the State on account of them. His relations with Lillian Davis, proved by his declarations to the prosecutrix, were properly the subject of comment, and we cannot see from the record that the counsel overstepped the bounds of legitimate criticism. The defendant being examined in his own behalf was asked by the Solicitor of the State if he had not transferred his property to avoid the result of this indictment. The defendant objected to the question, and the objection was overruled. The witness said that he had done so, and the defendant excepted. We see as little merit in this exception as in the others in the record. It was competent to ask the defendant on cross examination concerning his acts in reference to this charge against him. It would have been equally as competent to ask him if he had not fled from the charge. We have examined each exception and find them all without merit. The case seems to have been fairly tried and we find No Error. Additional Comments: In the NC Supreme Court Fall Term 1906 File at: http://files.usgwarchives.net/nc/burke/court/sidneyki2088gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 6.8 Kb