The defendants, James Raby and Ruena Shields, were indicted for the crime of fornication and adultery. The defendant Ruena had been married to one Mark Shields, but they were divorced at Spring Term, 1896, of Macon Superior Court. The defendants were found guilty and, after judgment, appealed, assigning three grounds of error as follows:
1. That the Court admitted evidence tending to show the guilt (683) of defendants, of facts that transpired since the finding of the bill of indictment. There was no error in allowing this evidence. S. v. Stubbs,108 N.C. 774; S. v. Guest, 100 N.C. 410; S. v. Wheeler, 104 N.C. 893.
2. Another exception is that the court refused a prayer of defendants requesting the court to charge that there was no evidence to go to the jury upon which they could find a verdict of guilty. This prayer was properly refused, as there was evidence sufficient to carry the case to the jury.
3. The third is as to the evidence of Mark Shields, the former husband of the defendant Ruena. He testified that about three years ago he "saw the defendants chopping in rye, together, in a field." This is but slight evidence of the guilt of defendants. But the whole case is one of circumstantial evidence, and it cannot be seen but what this circumstance contributed to the finding a verdict of guilty.
It becomes necessary, therefore, to see whether this evidence was competent or not. It is not claimed that it is competent under sections 589 or 590 of the Code.
This section (588) applies to the competency or incompetency of husband and wife, and it is seen by examination of this section of the Code that this evidence would have been incompetent if Mark Shields had continued to be the husband of the defendant Ruena.
This section of the Code has not changed the rule as between husband and wife from what it was before its enactment as to any evidence offered for the purpose of establishing adultery in either party. This rule of evidence is grounded on public policy and not on questions of interest, and for this reason sections 589 and 590 do not apply. As the rule has not been changed by 588, nor by 589, nor by 590 of the Code, we only have to look to decided cases to see what construction was placed upon the competency of a divorced party before these enactments. And we find that a divorced party was incompetent to testify to (684) any act showing or tending to establish adultery of the other *Page 504 party which occurred during the time of their marriage. S. v. Jolly,20 N.C. 110.
The law thus draws the line of incompetency and covers this period of their lives with a mantle of protection. For the error in admitting this incompetent testimony, which may have influenced the verdict of the jury, there must be a
New trial.
Cited: Kinney v. Kinney, 149 N.C. 326; Powell v. Strickland,163 N.C. 401.