Opinion
Filed 23 September, 1964.
Divorce and Alimony 14 — Testimony of a witness by deposition that defendant had sexual intercourse with her forcibly and against her will, and was prosecuted therefor, is sufficient to be submitted to the jury in plaintiff's action for divorce on the ground of adultery.
APPEAL by plaintiff from McLaughlin, J., April 27, 1964, Session of MOORE.
H. F. Seawell, Jr., for plaintiff appellant.
No counsel contra.
Action for absolute divorce on the ground of adultery and for custody of the child of the marriage. Defendant did not file answer. At the conclusion of plaintiff's evidence, the court, "on its own motion," being of the opinion the evidence "as to the charge of adultery was not sufficient to be submitted to the jury," entered judgment of nonsuit. Plaintiff excepted and appealed.
The evidence offered by plaintiff and admitted by the court was sufficient to require submission of the case to the jury. It includes the testimony of the woman with whom plaintiff alleged defendant had committed adultery. She testified, by deposition, that defendant had sexual intercourse with her forcibly and against her will and was prosecuted therefor. This testimony was in accord with and supports plaintiff's allegations. Hence, the judgment of nonsuit is reversed.
Reversed.