This was hearsay and should not have been permitted in evidence. Carnley v. State, 162 Ala. 94, 50 So. 362; Ramsey v. Smith, 138 Ala. 333, 35 So. 325; Shirey v. State, 21 Ala. App. 626, 111 So. 195; State v. Aswell et al., 193 N.C. 399, 137 S.E. 174. Motive is an inferential fact to be drawn by the jury from the evidence, and must be proved as a fact, not as hearsay. Bufford v. State, 23 Ala. App. 521, 128 So. 126. We seldom review a criminal case where the prosecution has called upon the trial court to give written instructions on behalf of the State.

Ordinarily failure to object in apt time to incompetent testimony will be regarded as a waiver of objection, and its admission is not assignable as error, but this rule is subject to an exception where the introduction or use of the evidence is forbidden by statute in the furtherance of public policy. S. v. Ballard, 79 N.C. 627; S. v. Gee, 92 N.C. 756; Broom v. Broom, 130 N.C. 562, 41 S.E. 673; Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933; S. v. Reid, 178 N.C. 745, 101 S.E. 104; S. v. Aswell, 193 N.C. 399, 137 S.E. 174; S. v. Kluttz, 206 N.C. 726, 175 S.E. 81. In Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933, where evidence rendered incompetent by statute was admitted, the Court said: "In such case it became the duty of the trial judge to exclude the testimony, and his failure to do so must be held for reversible error, whether exception has been noted or not.

The defendant's motion for judgment as of nonsuit should have been allowed. Barker v. Dowdy, 224 N.C. 742, 32 S.E.2d 265; S. v. Todd, supra; S. v. Miller, 214 N.C. 317, 199 S.E. 89; S. v. Woodell, 211 N.C. 635, 191 S.E. 334; S. v. Aswell, 193 N.C. 399, 137 S.E. 174; S. v. Prince, supra; Hopkins v. Hopkins, 132, N.C. 25, 43 S.E. 506. The judgment of the court below is

Johnston v. Johnston, 213 N.C. 255, 195 S.E. 807; Chestnut v. Sutton, 207 N.C. 256, 176 S.E. 743; Cottle v. Johnson, 179 N.C. 426, 102 S.E. 769. We are constrained to agree with the defendant, however, that the evidence is wanting in sufficiency to support a verdict for criminal conversation. S. v. Miller, 214 N.C. 317, 199 S.E. 89; S. v. Woodell, 211 N.C. 635, 191 S.E. 334; S. v. Aswell, 193 N.C. 399, 137 S.E. 174. It does no more than raise a suspicion, which is explained by the defendant's evidence. Pollard v. Pollard, 221 N.C. 46, 19 S.E.2d 1; Walker v. Walker, 201 N.C. 183, 159 S.E. 363; Dowdy v. Dowdy, 154 N.C. 556, 70 S.E. 917. If the failure to testify under the circumstances here disclosed affords an inference against the defendant, and we have held that it does, Powell v. Strickland, 163 N.C. 393, 79 S.E. 872, Walker v. Walker, supra, then the fact that he goes on the stand and explains the suspicious circumstances would avoid such inference or remove any unfavorable impression that might arise from the failure to testify.

After stating the case: The wife of the defendant Kluttz was not competent to give evidence against her husband, in a prosecution like the present, C.S., 1802, and it was error as to him to permit her to do so. S. v. Ashwell, 193 N.C. 399, 137 S.E. 174; S. v. Reid, 178 N.C. 745, 101 S.E. 104; S. v. Raby, 121 N.C. 682, 28 S.E. 490; S. v. Harbison, 94 N.C. 885. See, also, S. v. Spivey, 151 N.C. 678, 65 S.E. 995, and S. v. Cox, 150 N.C. 846, 64 S.E. 199.

In the opinion in that case it is said that conversations between husband and wife are not privileged as confidential, so as to prevent a third person who overheard them, from relating them to the jury. The statute in this State (C. S. 1802), which provides that no husband or wife shall be compellable to disclose a confidential communication made by one to the other during their marriage, and that neither shall be competent or compellable to give evidence against the other in a criminal action, has no application, for the reason that the conversation between defendant and his wife was not a confidential communication, and for the further reason that the wife did not undertake to give evidence against her husband as in S. v. Aswell, 193 N.C. 399, 137 S.E. 174, nor was she under cross-examination as a witness for her husband as in S. v. Adams, 193 N.C. 581, 137 S.E. 657. Defendant's reply to the remark of his wife to him, made in the presence of the officers, was competent as evidence against him.