State v. . Walton

90 S.E. 518, 172 N.C. 931, 1916 N.C. LEXIS 447

Opinion

AlltüN, J.

If tie declaration of tie female defendant, that tie male

defendant was tie father of her child, was made in tie presence of tie defendant and was heard by him, it was clearly competent, “for a declaration in tie presence of a party to a cause becomes evidence, as showing that tie party, on hearing such a statement, did not deny its truth; for if ie is silent when he ought to have denied, there is a presumption of his acquiescence. And where a statement is made, either to a man or within his hearing, that ie was concerned in tie commission of a crime, to which ie makes no reply, tie natural inference is that tie imputation is well founded, or ie would have repelled it.” S. v. Suggs, 89 N. C., 530.

The rule and its limitations are fully discussed and the dangers at-tendeut upon the admission of evidence of this character are pointed out by Hoke, J., in S. v. Jackson, 150 N. C., 832.

Evidence of practically the same probative effect was admitted in Toole v. Toole, 112 N. C., 155.

The witness Reed testified that the defendant was present when the declaration was made, and there is evidence that he heard it. as he was within 4 or 5 feet, and he said nothing and left as soon as he was charged' with being the father of the child.

If, however, it. was in doubt as to whether he heard the statement, it was proper to receive the evidence and instruct the jury not to consider it unless satisfied that the defendant heard it, and we must assume that the jury was instructed correctly, as there is no exception to the charge, and it is not sent as a part of the record.

The evidence is ample to support the verdict, and there was no error in refusing the motion for judgment of nonsuit.

No error.