Overstreet v. State

FORNICATION. The general rale is that hearsay evidence is not admissible. The exceptions to this rale are grounded alone upon necessity. The offense of fornication, charged in the indictment, is one of a specific character, not falling within those exceptions, and must he proved in the mode pointed out by law. 1

Error to Holmes circuit court. This was an indictment against Overstreet for living in fornication. Plea, not guilty. On the trial the attorney for the state proposed and offered to prove, that it “ was common report in the neighborhood, that the defendant and one Sarah Hamilton lived together in fornication,” which proof was objected to by the prisoner’s counsel. The objection was overruled and exceptions taken to this opinion of the court. Objections were also made to the indictment, but it is unnecessary to state them. 1. It was error in the court below, to refuse to quash the indictment. 2. It appears from the record that the indictment was found under the direction, and signed by Robert S. G. Perkins, district attorney pro tern., and not by the legal district attorney. 3. The court admitted improper and illegal testimony to go to the jury, as stated in the bill of exceptions; wherefore the said plaintiff in error prays, that said judgment for the errors aforesaid, and other errors in the record and proceedings aforesaid, may be set aside, and reversed, &c. The record may not show that the jurors were good and lawful men, or that they were freeholders or householders. For all men are presumed to be good and lawful men unless the contrary appear. 'Woodsides v. State, 2 How., 247; Farish v. State, ib., 826. Hearsay testimony may be admitted to prove the general character in which parties live together, so the party introducing it, does not undertake to prove any particular facts or fact by the hearsay testimony, but only the general reputation of the manner in which the parties lived. Norris’ Peake, 27. If the bill of exceptions showed that the hearsay testimony was the only proof offered by the state, there would be some ground for doubt on the subject.