FAIRCLOTH, C. J., and DOUGLAS, J., dissenting. In an indictment for bigamy the first wife is a competent witness to prove the marriage. The Code, sec. 588; S. v. McDuffie, 107 N.C. 885,890. Indeed, marriage and public cohabitation as man and wife are public acknowledgments of the relation and do not come within the nature of the confidential relations between them which the policy of the law has always forbidden either to give in evidence. This disposes of the first four exceptions.
The fifth exception to proving the second marriage by the record book of marriages for the county is not well taken. The same is true of the sixth exception, which was to the admission of the original marriage license signed by the justice solemnizing the same, nor was it necessary that the said justice, nor the witnesses attesting the certificate as being present at the marriage, should be in court. The "witnesses (593) of the law," who must be in court, or their absence accounted for, are the subscribing witnesses to a deed, bond or will, and that is because they are selected to prove the execution of such instrument. But here it is not the execution of the certificate which is to be proved. The certificate filed in the register's office and the registration thereof are both record evidence of the marriage, and the regularity is presumed from such evidence till "the contrary be shown." S. v. Davis, 109 N.C. 780.
The seventh exception was that a witness testified that "the defendant and Harriet Melton were married about 39 years; that they were married *Page 412 about five miles from Chesterfield C. H. South Carolina; that about two years ago the defendant stated that he had another wife, his present wife being present at the time; that defendant and Harriet Melton were slaves when they were married." The admission by the defendant of his former marriage is competent evidence against him. S. v. Wylde, 110 N.C. 500, and numerous cases there cited. In the preliminary examination before the justice the defendant asked to be allowed to testify, and the justice, having given him the ordinary caution and also having told him that whatever he would say could be used against him in a higher court, the defendant testified that he had been married in Chester County, S.C., to Harriet Melton while they were slaves and had raised some children by her, and that in 1894 he married Delia Ann Teel in North Carolina. These admissions were competent to go to the jury. S. v. Wylde, supra, 2 A. E., 196, and cases cited.
The defendant prayed the Court to instruct the jury "that the marriage of the slaves and their living together in the relation of husband and wife while in a state of slavery, did not constitute the relation of (594) husband and wife in North Carolina; that the omission of the State to introduce any evidence of the law in South Carolina before the jury, leaves the jury to be governed by the decisions and laws in this State, and by that law this marriage in South Carolina was not a valid one; that upon the whole evidence in this case the State cannot convict." The defendant excepted to the refusal of this prayer. If any part thereof was incorrect, it was not error to refuse it.
The witness, Streator, having testified that the defendant two years ago admitted, in the presence of his second wife, that he had another wife living, this admission was competent to submit to the jury, who will "determine whether what he said was an admission that he had been legally married." Regina v. Simonds, 1 Car. Kir., 164, and Miles v. U.S.,103 U.S. 304, and other cases cited in S. v. Wylde,supra. This admission does not specify the name of the first wife, nor does the indictment set out her name and it is not necessary that it should. S. v. Davis, 109 N.C. 780; Wharton Cr. Law, 1714, and cases there cited. It was, therefore, not error to refuse a prayer which contained the instruction "that upon the whole evidence the State cannot convict."
The witness Streator testified that the defendant and Harriet Melton had been married 39 years, and that defendant two years ago admitted, in the presence of his second wife, that he had another wife living, and the defendant before the Magistrate testified that he had married said Harriet in South Carolina while they were slaves and had raised several children by her. The prayer for instruction is further erroneous in that it asked the Court to charge that such a marriage was invalid in North Carolina. There was ample evidence to justify the jury in finding that *Page 413 the cohabitation continued after 1866, for there was further (595) evidence that they "lived together many years and had several children"; that two years ago he admitted having another wife, and also evidence from the defendant tending to show that the marriage was between 1861 and 1868. Indeed, the relation having begun is presumed to continue till evidence to the contrary, and persons married in North Carolina while slaves, who continued to cohabit after the abolition of slavery, were ipso facto legally married (Act 1866, chap. 40) and no acknowledgment before an officer was essential. "The marriage was complete before the prescribed acknowledgment" made before the Clerk, even if such acknowledgment were not made at all. S. v. Whitford, 86 N.C. 636;S. v. Adams, 65 N.C. 537; Long v. Barnes, 87 N.C. 329; Jonesv. Hoggard, 108 N.C. 178; Kirk v. State, 65 Ga. 159. By these authorities, if the defendant and Harriet, having married in South Carolina while slaves, had cohabited in North Carolina after 1866, as there was evidence to show they did in South Carolina, they could not have been convicted of fornication and adultery, the validity of the marriage dated back to its inception and their children had all the rights of legitimates. Our statute of 1866, owing to the peculiar status of slave marriages, adopted as to such marriages the rule which has long prevailed in Scotland, New York and several other States (and which was the rule of the civil law and of the Canon law till the Council of Trent), that consent, followed by cohabitation, constitutes a legal marriage. 14 Am. and Eng. Enc., 515. The defendant's prayer was, therefore, further erroneous in virtually asking the court to take the case from the jury by telling them that upon the facts in evidence they should find that there was no valid prior marriage "according to the laws and decisions of this State." If, in the absence of proof, marriage between slaves is to be deemed invalid in South Carolina because invalid in North Carolina, for the same reason, in the absence of proof, the continued cohabitation of such parties after 1866 constituted legal marriage (596) because such is the law here.
The exception to the "charge as given" has been uniformly and repeatedly held, indeed, in more than fifty decisions of this court, to be invalid. The Legislature has, besides, given the appellant in all cases ten days, after the adjournment of court, in which to ponder over and set out his assignments of error to the charge, though all other matters must be excepted to at the trial. Lowe v. Elliott, 107 N.C. 718; Blackburn v.Ins. Co., 116 N.C. 821. When, after ten days allowed for specific exceptions to the charge, the only error assigned is "to the charge as given," at most we can only take the appellant as excepting to it because it did not contain his prayer, or for containing the opposite instruction, and no further; that is, he simply duplicates his exception for *Page 414 the refusal to charge as prayed. It was not necessary that the indictment should contain an averment that the defendant had not been divorced from his first wife, as that matter of defense, for though appearing in the section denouncing the offense (The Code, 988) it is in the proviso thereof. S. v. Norman, 13 N.C. 222; S. v. Davis, 109 N.C. 780.
No error.