Opinion · Supreme Court of North Carolina

State v. . Phipps

State v. . Phipps, 76 N.C. 203 (N.C. 1877)

Type
Opinion
Court
Supreme Court of North Carolina
Jurisdiction
North Carolina
Date
1877-01-05
Topic
general

FaiR,clotii, J. The defendant and Margaret Locklear wrere indicted for fornication and adultery. The Solicitor entered a nolle prosequi as to Locklear and introduced her as a witness against' the defendant to prove the offence charged. Was she a competent witness'for that purposed» the question ? She was not until the Act of 1866, Bat.

Citator

UpLaw has not yet analyzed State v. . Phipps. The absence of a flag is not a finding that it is good law.

Cited by
6 opinions
STATEv. PHIPPS,76 N.C. 203(1877)
STATE v. L. A. PHIPPS.
Supreme Court of North Carolina
(January Term, 1877.)
Indictment — Fornication and Adultery — Witness.

In a trial for fornication and adultery, a former defendant as to whom anolle prosequihas been entered is a competent witness against the other defendant.

(Statev.Rose, Phil. 406, cited and approved.)
INDICTMENT against the defendant and Margaret Locklear for Fornication and Adultery, tried at Fall Term, 1876, of GUILFORD Superior Court, beforeKerr, J.

On the trial of the case, the Solicitor for the State entered anol.pros. as to Margaret Locklear and introduced her as a witness against the defendant who objected on the ground that she was incompetent. His Honor overruled the objection, and upon her evidence the jury rendered a verdict of guilty.

Rule for new trial. Rule discharged. Judgment. Appeal by defendant.
Attorney GeneralandMr. J. T. Morehead, for the State.Messrs. Dillard Gilmer, for the defendant.
FAIRCLOTH, J.
The defendant and Margaret Locklear were indicted for fornication and adultery.

The Solicitor entered anolle prosequias to Locklear and introduced her as a witness against the defendant to prove the offence charged.

Was she a competent witness for that purpose is the question? She was not until the Act of 1866, Bat. Rev. ch. 43, § 14, abrogating the long settled rules of evidence, was passed which made her evidence admissible.Statev.Rose, Phil. 406.Page 204

The Act of 1869-'70, ch. 177, repeals the above Act in its application to criminal matters and restored the common law rule of evidence; but a subsequent Act, 1871-'2, ch. 4, repeals the latter Act, and thus restores the competency of the witness.

The policy of legislation leading to this result is a matter for the consideration of the Legislature The Court can only declare the law as it finds it.

There is no error. Let this be certified to the end that the Superior Court may proceed according to law.

PER CURIAM. Judgment affirmed.