Proving Incest

STATE v. STONE, 240 N.C. 606 (1954): [Defendant was convicted of incest with his daughter.] As disclosed in the record, the principal State's witness told a story involving her father in sex crimes with her, beginning when she was nine years old and continuing until 15 August, 1952. On 15 August, 1952, the defendant and his wife were taking the witness to task for keeping company with a married man, whereupon a fight took place in which she testified the defendant pulled her hair and she kicked him. She immediately left home, not to return. At that time she was 15 years old. Immediately after she left home, on 15 August, 1952 she told a married sister and her sister's husband of her father's conduct toward her. In corroboration, they testified for the State as to what she had told them. The defendant testified in his own behalf, entering a complete denial. The wife and other members of the family testified in his behalf, corroborating him.... [The daughter] testified on some occasions her father used rubbers, others he did not.

[Defendant was arrested seven months after his daughter left home. At the time of his arrest, two condoms were found in his wallet. These were admitted as evidence over his objection.]

Did the trial court err? Consider the Stone court's opinion:

The rule of relevance is stated by Greenleaf (1 Greenleaf, Evidence, sec. 51a), "It is not necessary that the evidence should bear directly on the issue. It is admissible if it tends to prove the issue or constitutes a link in the chain of proof, although alone it might not justify a verdict in accordance with it."...

"Where the particular fact sought to be proved is equally consistent with the existence or nonexistence of the fact sought to be inferred from it, the evidence can raise no presumption either way, and should be excluded." S. v. Brantley, 84 N.C. 766.

In S. v. Brantley, supra, after discussing the necessity for the use of circumstantial evidence and the dangers incident to such use, the Court said: "Among other hazards and inconveniences it was found that to allow evidence to be given touching every collateral matter that could be supposed, however remotely, to throw any light upon the main fact sought to be established, had the effect to render trials too complicated and to confuse and mislead the juries, and at the same time to surprise the party on trial who could not come prepared or disproved every possible circumstance, but only such as he might suppose to be germane and material. And therefore the main rule was adopted of restricting the inquiry to such facts as, though collateral to the matter at issue, had a visible, reasonable connection with it--not such a connection as would go to show that the two facts, the collateral one and the main one, sometimes, or indeed often, go together, but such as will show that they most usually do so."

When tested by the foregoing rule, the possession of prophylactics on 16 March, 1953, does not tend to prove the defendant committed rape on the - day of June, 1949, and it does not tend to prove that he committed incest or that he had sexual intercourse with an innocent and virtuous female over 12 and under 16 years of age on 15 August, 1952.

The admissibility of this evidence over defendant's objection was prejudicial error.

Is the approach of the Stone court consistent with the approach of the Adamson court? Are the results in these two cases compatible? Do the courts use different standards? What standard does the Stone court employ in ruling on the relevancy of the prophylactic evidence? Are there unarticulated reasons for excluding this evidence? Are these reasons strong enough to overcome the probativeness of the evidence?