State v. Dillahunt , 244 N.C. 524 ( 1956 )

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94 S.E.2d 479 (1956) 244 N.C. 524
STATE
v.
Norris DILLAHUNT.
No. 73.
Supreme Court of North Carolina.
September 26, 1956.
George B. Patton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

Cecil D. May, New Bern, John D. Larkins, Jr., Trenton, for defendant, appellant.

PER CURIAM.

In a criminal action neither the husband nor the wife is competent to testify against the other. G.S. § 8-57. The rule is subject to certain exceptions not *480 material here. The prohibition extends to declarations made by one spouse not in the presence of the other. It is the duty of the presiding judge to exclude such evidence. Objection is not necessary. State v. Warren, 236 N.C. 358, 72 S.E.2d 763. The Attorney General concedes the State's inability to distinguish between this and the Warren case and on its authority the assignment of error is sustained and a new trial ordered.

New trial.

JOHNSON, J., not sitting.