State v. . Pope

13 S.E. 700, 109 N.C. 849

• Court: Supreme Court of North Carolina
• Decided: September 5, 1891
• Status: Published

Opinion

Davis, J.:

The defendant demurred to the evidence, and insisted that there was no evidence of guilt sufficient to go to the jury. There was no evidence in the case on appeal that the woman was a single woman; nor was there any evidence that her child, born while she lived at the house of defendant Pope, was a bastard child ; nor was there any evidence, other than indirect and inferential, that the defendants were not husband and wife. There was no evidence sufficient to go to the jury, and the defendant is entitled to a new trial.

It is but just and due to the able, accurate and conscientious Judge before whom the case was tried, to say that the defendant’s case on appeal was served upon the Solicitor for the State, and no amendments were suggestéd or objections made by him. It did not appear in the evidence in the case on appeal-that the woman was unmarried, or that the child born at defendant’s house was a bastard. The Solicitor may have overlooked or failed to advert to the evidence, but if he had no evidence other than that set out in the case on appeal, he ought not to have prosecuted the defendant; but we will not do the learned Judge who tried the case the injustice to suppose that the case contained all the evidence, or that he would have permitted a verdict of guilty only upon the evidence set out.

Error.