State v. Kleiman , 241 N.C. 277 ( 1954 )

85 S.E.2d 148 (1954) 241 N.C. 277

STATE
v.
Robert J. KLEIMAN and Nella Wyatt.

No. 649.

Supreme Court of North Carolina.

December 15, 1954.

Harry McMullen, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Harvey W. Marcus, Chapel Hill, Member of Staff, for the State.

Harry R. Stanley, Greensboro, for defendants, appellants.

BOBBITT, Justice.

The only evidence before the court and jury was that offered by the State. The sole inquiry, as to nonsuit, is whether this uncontradicted evidence, and every reasonable inference to be drawn therefrom, considered in the light most favorable to the State, is sufficient for submission to the jury. State v. Ritter, 239 N.C. 89, 79 S.E.2d 164, and cases cited.

While conceding the evidence shows an act of illicit sexual intercourse on 21 March, 1954, defendants contend it does not show that they did unlawfully, "lewdly and lasciviousy associate, bed and cohabit together," as charged in the bill of indictment.

A single act of illicit sexual intercourse is not fornication and adultery as defined by G.S. § 14-184, State v. Ivey, 230 N.C. 172, 52 S.E.2d 346; for, as stated in State v. Davenport, 225 N.C. 13, 33 S.E.2d 136, 139, "``Lewdly and lasciviously cohabit' plainly implies habitual intercourse, in the manner of husband and wife, and together with the fact of not being married to each other, constitutes the offense, and in plain words draws the distinction between single or nonhabitual intercourse and the offense the statute means to denounce."

But, as stated further by Seawell, J., in the opinion in the Davenport case: "It is never essential to conviction that even a single act of illicit sexual intercourse be proven by direct testimony. While necessary to a conviction that such acts must have occurred, it is, nevertheless, competent to infer them from the circumstances presented in the evidence." And, as stated by Davis, J., in State v. Rinehart, 106 N.C. 787, 11 S.E. 512, 513: "From the very nature of the offense, it is usually proved by circumstances, rarely by positive and direct evidence of the adulterous acts. It is not necessary that the defendants should have been seen bedding and cohabiting together."

True, as contended by defendants, the evidence shows the association between defendants only between March 5th and March 21st. Ordinarily, the duration of the association, as an element of the offense, is immaterial. In State v. McDuffie, 107 N.C. 885, 12 S.E. 83, an instruction that habitual illicit sexual intercourse for two weeks was sufficient to constitute the offense, was approved.

Defendants insist that the State's evidence does not show that defendant Kleiman and his wife were separated but that inferences to be drawn therefrom point in the other direction. This, as an element of the offense, is immaterial; for in State v. Guest, 100 N.C. 410, 6 S.E. 253, where the conviction was affirmed, the adulterous association was in the home where the feme defendant and her husband resided.

Defendants insist that the State failed to show that Mrs. Kleiman did not live at 2806 Robinhood Drive. This contention is without force or merit. Certainly there is no evidence that she did live there or was ever seen there. The evidence tending to show what persons were seen at the house, together with the evidence that the feme defendant and defendant Kleiman made arrangements for the rental of the house, tends to negative any idea that Mrs. Kleiman was in any way involved at 2806 Robinhood Drive.

Conceding that the events of March 21st, standing alone, would have been insufficient, and conceding that the circumstances as to what transpired from the rental of the house until March 21st, standing alone, would have been insufficient, yet when considered in combination the evidence was sufficient to carry the case to the jury; for all that occurred on March 5th and thereafter must be considered and its significance determined in the light of what occurred on March 21st.

The exceptions to the charge are without merit. The exceptions, in the main, relate to portions of the charge wherein the court was reviewing contentions. Aside from the rule that any error in the statement of contentions should be called to the attention of the court when it occurs, State v. Lambe, 232 N.C. 570, 61 S.E.2d 608; State v. Stone, N.C., 84 S.E.2d 923, careful consideration fails to disclose prejudicial error. Indeed, the argument advanced in support of these exceptions is in effect addressed to the insufficiency of the evidence for submission to the jury.

Included in the portions of the charge to which exceptions were taken are these instructions of law: "In this connection, the Court charges you that one act of sexual intercourse is not sufficient to sustain a conviction in a case of this kind. Lewdly and lasciviously means simply habitual sexual intercourse in the manner of husband and wife by a man and woman not married to each other." Again: "So that you are instructed that if you find from the evidence beyond a reasonable doubt that the defendants, not being married to each other, engaged in sexual intercourse with each other with such frequency between March 5th and March 21st that these relations were habitual, then it would be your duty to return a verdict of guilty as charged." These instructions, together with others not quoted, are in conformity with defendants' and our view of the law. Furthermore, the court instructed satisfactorily upon the rules applicable to the consideration of circumstantial evidence.

The case was one for the jury. It seems to have been tried fairly and in accordance with well established principles. No prejudicial error is shown.

No error.