
    STATE v. JOHN WALTON.
    (Filed 15 November, 1916.)
    1. Criminal Law — Fornication and Adultery — Declarations of Woman — Evidence — Trials.
    Upon trial under an indictment for fornication and adultery, a statement made by tbe female defendant to tbe officer filling in a birtb certificate of a two or three months old child, that the male defendant was its father, made within easy hearing distance within the room with him, which he did not deny, but left the room, is competent evidence against him; and if doubtful that he heard such statement, it is a question for the jury-under instruction that they do not consider it unless satisfied that the male defendant heard it.
    2. Appeal and. Error — Instructions—Presumptions.
    Where there is no exception to the charge of the court, and the charge is not sent up in the record, it will be presumed on appeal that they were correctly instructed.
    CRIMINAL action tried before Qline, J., at February Term, 1916, of Davidson.
    The defendant 'Walton and a female defendant were indicted for fornication and adultery, and from a judgment rendered on a verdict of guilty, Walton appealed. Tie was sentenced to jail for six months.
    It appears that the woman, Mrs. Harris, with whom the defendant is charged with having maintained illegal relations, lives about a mile and a half from the Amazon Mill, and that the defendant was night watchman at .that mill. He visited her home almost daily, during the day and at night, and was frequently seen cutting and preparing wood.
    On one occasion a policeman went to her house to- get her to fill in a certificate of the birth of her child, then two or three months old; that he and another officer sat by the fire, and that the defendant stood by the mantel-board some 4 or 5 feet away. As. Mrs. Harris could not read or write, the officer read the questions to her and wrote down her answers. The witness does not know whether the defendant heard what Mrs. Harris said or not. Wien, in answer to tie question as to tie name of tie father, sie said that tie child’s father's name was John Walton, ie then went out through tie dining-room and left. He said nothing.
    Tie defendant excepted to tie admission of tie statement of tie feme defendant that ie was tie father of her child.
    Tie defendant also moved for judgment of nonsuit, which was denied, and ho excepted.
    
      Attorney-General Biclcetl and Assistant Attorney-General Calvert for the State.
    
    
      L. B. Williams for defendant.
    
   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.  