
    STATE v. PERRY COOKE.
    (Filed 6 November, 1918.)
    Seduction — Promise of Marriage — Prosecutrix — Supporting Evidence — Statutes — Criminal Law.
    Upon a trial for seduction under a promise of marriage, tbe direct testimony of tbe prosecutrix is sufficiently supported by other testimony wbicb tends to sbow tbe previous good character of tbe prosecutrix; that she and defendant went continuously together, as engaged people, for two years; that she told her father and mother of the promise and of her love for the prisoner when her condition was first discovered, and that the child was born nine months after the prisoner’s purpose was accomplished; and a motion to nonsuit was properly denied. Revisal sec. 3354.
    Walker, X, concurring with opinion; Hoke, X, concurring in result; Allen, J., dissenting; Brown, J., concurring in the dissenting opinion of Allen, J.
    Appeal by defendant from Calvert, J., at May Term, 1918, of Feaete-LIN.
    Tbe defendant was indicted and convicted for seduction under promise of marriage, and appealed.
    
      Attorney-General Manning, Assistant Attorney-General Nash, W. H. Yarborough, and Ben T. Holden for the State.
    
    
      W. M. Person and T. T. Hides for defendant.
    
   Claek, C. J.

Tbe defendant bas twice been convicted by tbe unanimous verdict of a jury — twenty-four men, each of wbom found tbat tbe defendant was guilty beyond a reasonable doubt, and tbe judge on botb occasions beld tbat there was sufficient evidence in support of tbe woman’s testimony to submit tbe case to tbe jury. Tbis Court is now asked by tbe defendant to adjudge whether there was supporting evidence when it bas convinced two juries who heard it, saw tbe demeanor of tbe witnesses upon tbe stand, and who by tbe Constitution were charged with finding tbe facts. Tbe judge set aside the verdict of tbe first jury, but it was stated on tbe argument, and not controverted, tbat tbis was not upon tbe ground of any doubt of tbe correctness of tbe verdict, but because, after verdict, tbe defendant raised tbe technical point tbat one of tbe jurors was related to tbe prosecutrix. Tbis did not require tbe judge to set aside tbe verdict, but was a matter resting entirely in bis discretion. S. v. Maultsby, 130 N. C., 664, and cases there cited and citations thereto in tbe Anno. Ed.

Reviewing tbis testimony, tbe presiding judge properly submitted it to tbe jury.

Tbe prosecuting witness testified tbat she and tbe defendant “became engaged in tbe fall of 1916,” and tbat at Christmas “be bad promised to marry me, and I thought be would keep bis word; so I yielded to him.” She testified tbat be began to visit her in tbe summer of 1915 and continued to do so till April or May, 1917, when be ceased coming; tbat during tbis time be would come to see her, and she would sometimes meet him at church and be would take her borne; tbat she bad other beaux, but was never engaged to any of them, nor was there any improper conduct with them. Four witnesses on tbe part of tbe State and three on the part of the defendant testified to the good character of the prosecutrix, and there was no testimony to the contrary. The child was born in September, 1917. The above was testimony in support, even if there was nothing more, though in this case there was. In S. v. Horton, 100 N. C., 448, the Court says: “The virtuous character and conduct of the prosecutrix was proved and conceded; so the testimony of the injured girl was not hmstipported,’ but derived confirmation from that of others as the statute prescribed.”

In S. v. Malone, 154 N. C., 202, the Court says: “The prosecutrix testified to the promise of marriage, the seduction, and innocence and virtue. A child was born to her and was 18 months old at the time of the trial. There was evidence tending to show that prior to her alleged seduction by the defendant she had always been a woman of good character and led a blameless life, and that as a school girl she had borne a good reputation with her teacher and schoolmates. This was sufficient to constitute supporting testimony within the meaning and requirement of the statute.”

These two cases are exactly in point, and if there had been no other evidence, amply sustain the action of the judge and of the two juries.

But there is other supporting testimony in this record of the promise of marriage: For nearly two years the defendant was going with the prosecutrix from the summer of 1915 to April or May, 1917. She testifies to this and is supported by the testimony of her mother, of her father and of the defendant himself. This was held sufficient in S. v. Moody, 172 N. C., 967, in which Walker, J., speaking for a unanimous Court and citing several cases, held as set out in the headnote:

"Criminal Law — Seduction—Trials—Supporting Evidence — Statutes. Upon trial under an indictment for seduction under a breach of promise of marriage (Eevisal, sec. 3354), requiring supporting evidence to make that of the prosecutrix competent upon the three elements of the crime, it is not necessary that the supporting evidence be sufficient, as substantive evidence, for conviction; and where the good character of the prosecutrix before the act has been testified to by other witnesses, the act itself admitted, and there is testimony that the defendant had paid the j>rosecu~ trix exclusive and assiduous attention for years under circumstances evidencing that he was her accepted lover, her testimony as to the promise of marriage is sufficiently supported by the testimony of others to be-competent within the meaning of the statute.” This case has been approved and followed in S. v. Fulcher, ante, 724.

It is not within the province of this Court to review and weigh the testimony, and determine what the verdict should have been; that was a matter for the jury, subject to the revising power of the trial judge if he deemed the verdict against the weight of the testimony, which he did not. The only power committed to this Court is to say whether there was any testimony in “support” of the woman’s testimony, and the above cited cases hold that the circumstances above recited, and which appeared in this case, were sufficient to be “supporting testimony.” It must be remembered that this offense is always committed in secret, and the testimony “in support” is not required to be by an eye-witness.

But there was further corroborating testimony in this case. There was evidence in this case by the father and mother that when her condition was first discovered the prosecuting witness told them that she and the defendant had been engaged, and that the defendant was the father of her child. In S. v. Whitley, 141 N. C., 823, the defendant excepted that the mother of the prosecutrix was allowed to testify, as here, that after she discovered her daughter’s condition the daughter told her that the defendant had promised to marry her and she loved him. The Court (at p. 825) said: “The statements made by the pros-ecutrix to her mother were competent to corroborate her testimony on the trial.”

In S. v. Kincaid, 142 N. C., 657, similar statements were admitted as corroboratory evidence. Again, it is said in S. v. Pace, 159 N. C., 464: “It is well settled that statements to others that the prosecutrix and the defendants were going to be married are competent for the purpose of corroborating the testimony of the prosecutrix that defendant had offered and promised to marry her.”

There was further evidence that on Christmas day, 1916, after their engagement, the defendant came to her home and took her in his buggy to Mrs. Tharrington’s to spend the night, and the next day to Mr. Carter’s, and they were there several days. This was evidence tending to corroborate the engagement which she testified to as then existing, and neither Mr. or Mrs. Tharrington nor Mr. Carter was called to contradict this significant testimony. It is a most pregnant fact in corroboration that the child was born exactly nine months afterwards.

Upon the above authorities, there was abundant evidence to carry the case to the jury of the vicinage, who, knowing -the witnesses and the credit which should be given their testimony, and having the opportunity to observe their conduct and bearing on the stand, and other pointers to the truth (which cannot appear in the dry transcript of the record to this Court), have acted within the authority confided to them by the Constitution, and upon their oaths have twice said that beyond a reasonable doubt on the part of any of the twenty-four, against none of whom the defendant urged any objection, that he was guilty beyond a reasonable doubt. To require more evidence in a case of this kind would be practically to repeal the statute. ' There is no reason why the requirement in tbe statute should iu this case extend beyond wbat the Court bas heretofore held.

There is no crime more despicable than this. It is committed in secret, by lust and lying, by deception and the stronger taking advantage of the weaker. Yet, under the influence of mediaeval ideas, it was not made a crime in this State till the act of 1885. The proviso that the testimony of the woman should not be sufficient to convict unless supported was not, however, intended to “throw the monkey-wrench into the machinery” and prevent the possibility of conviction. Prior to that time, the only remedy was by a civil action, with the humiliating requirement, under the common law, that it should be brought by the father, alleging the loss of the services of his daughter as his servant. But even then the common law did not disparage the testimony of the daughter as unworthy of belief unless “supported.”

Upon the statute as written, and upon the precedents, there was not only evidence in support, but as much as can ordinarily be offered as to an offense of this kind, committed in secrecy. There was unqualified evidence of the promise of marriage, though in S. v. Ring, 142 N. C., 596, it was held that it was sufficient if this could be reasonably inferred from the evidence; there was evidence of the good character of the girl, which was held sufficient supporting testimony in S. v. Horton, 100 N. C., 448, and S. v. Malonee, 154 N. C., 202; there was evidence that she told her mother and father of the engagement and the conduct of the defendant, which was held sufficient as supporting testimony in S. v. Moody, 172 N. C., 967, and numerous cases there cited by Walker, J., from this and other States. The testimony of the mother that the daughter told her of her engagement and of the conduct of the defendant was also held sufficient in S. v. Whitley, 141 N. C., 823, and S. v. Kincaid, 142 N. C., 823. There was also evidence of the continuous courtship for two years, and of their visiting together at the houses of friends and relatives at Christmas, 1916, for several days, and the further striking fact that the child was born 25 September, 1917, exactly nine months later.

The act of 1913, ch. 73, provides that if on this motion the judgment of nonsuit is allowed on appeal, “It shall, in all cases, have the force and effect of a verdict of not guilty.” This is not, therefore, the case of a new trial for some error, of the judge, but is a verdict by the court of not guilty, which theretofore was without precedent. But the statute certainly did not intend that this Court should weigh the evidence and render a verdict.

As to a similar statute in civil oases (chapter 109, Laws 1897), we said, in Willis v. R. R., 122 N. C., 908: “The act was not intended to deprive parties of the right to trial by jury when there is any evidence.” This has been often cited since. (See Anno. Ed.). The rule that, on motions for a nonsuit, the evidence inust be taken in the light most favorable for the State or plaintiff., and with all the reasonable inferences that can be drawn from it, is more than ever essential if we are to preserve the constitutional principle that the facts are to be found by a jury, and not by the court.

As to the offense here charged, it is true, the statute forbids the jury to believe the witness for the State, even though as a matter of fact they do believe her testimony, unless she is “supported.” “The statutes does not specify how much or in what way -she shall be supported, but simply that she shall be supported” (Brown, J., in S. v. Pace, 159 N. C., 462), and no case has ever held insufficient such evidence as this.

This discrimination against the woman is the only instance now in our statutes where a whole class is branded by the statute as unworthy of belief, unless there is testimony to support them. As to treason, owing to the fearful penalties formerly of being drawn to the place of execution, disemboweled, and the head, after execution, being exposed, and other barbarous penalties, the law did require two witnesses, but this did not ban any particular class of witnesses, and the defendant at that time was not allowed to testify in his own behalf. As to perjury, it has been held that something more than one witness is necessary, because it was oath against oath. But in neither of these cases was the requirement discounting the testimony of the witness a disqualification to one class of people only. Besides, in North Carolina there have been no trials for treason since we entered the Union, in 1789.

On the- other hand, there are offenses as to which the law, instead of disparaging the testimony for the State, provides that when a certain state of facts is shown, there is a prima facie evidence of guilt, as, for ■ instance, that when killing with a deadly weapon is shown, the law presumes malice, and the offense is murder, unless the defendant shall prove matter in defense or litigation. In indictments for larceny, the recent possession of stolen goods raises a presumption of guilt, and the same is true as to possession of intoxicating liquors, and there are other cases in which the requirement of proving the defendant guilty beyond a reasonable doubt is met by a presumption of guilt on proof of a given state of facts.

In addition to the statute on its face being a discrimination against the testimony of women, the woman in such cases is under the greatest possible disadvantage by reason of her shame and confusion, unaccustomed to proceedings in the courthouse, frightened and burdened with an offense which her associates and society will never condone, and she is burdened further by this requirement, not only that she must prove her deceiver guilty beyond a reasonable doubt, but by the further requirement that she must be “supported.”

There was a time when Jews were disqualified as witnesses, or disparaged by additional testimony being required; till a later date, slaves were incompetent as witnesses; and still more recently, defendants in all criminal actions, and parties or those interested in civil actions were disqualified to testify. All these restrictions (with an exception in civil actions only as to transactions when the other party is dead) wiser legislation has swept away, and the credit to be given to the testimony of a witness is for the jury to determine. Minors are not disqualified or legally disparaged as witnesses, if found of sufficient intelligence. A defendant in a criminal action is always competent now to testify in his own behalf. The sole restriction as to criminal actions now remaining in our statutes is this disparagement and discrimination against the credit the jury shall give to the testimony of the woman in an indictment of this kind, whom the jury is forbidden to believe (even though in fact they may believe her), unless supported by other evidence.

Meanwhile, the other party to a transaction of this kind is not only competent, and the jury is left free to believe him without disparagement, but his testimony is enhanced and bulwarked by the usual rule in criminal actions, that the jury cannot find against him unless “beyond a reasonable doubt” they find his testimony to be untrue when, as in this case, he goes upon the witness stand.

But when even with that disparagement the testimony of the prosecuting witness has been held true beyond a reasonable doubt by two juries, and the judge has twice held the evidence sufficient and supported, an appellate court should be very slow.to find the defendant “not guilty.” On such motion, the evidence must be taken in the most favorable light for the State. S. v. Carlson, 171 N. C., 818.

No error.

Walker, J.,

concurring: It will be found by reference to S. v. Malonee, 154 N. C., 202, that the quotation from it in the opinion of the' Court in this case, was taken from a context which was restricted solely to the innocence and virtue of the woman, and did not extend to the' seduction or promise of marriage, which were considered afterwards, and we held merely that her general good reputation or character was “supporting” testimony as to such innocence and virtue; and in Moody’s case we said that the woman’s testimony was not sufficient to convict unless, supported in the essential particulars, and not that its competency depended upon its being supported. My opinion is, that in this case there is supporting testimony as to all three essentials. With this understanding of those decisions, I agree to the conclusion of the Court that there was no error in the trial of the case.

AlleN, J.,

dissenting: The statute under which the defendant is indicted has a twofold purpose — one, to protect the innocent and virtuous woman; and the other, to guard the man from an unfounded charge, made by the woman in her extremity; and it is therefore provided “That any man who shall seduce an innocent and virtuous women under promise of marriage shall be guilty of a crime,” but that “The unsupported testimony of the woman shall not be sufficient to convict.” Rev., sec. 3354.

In the construction of the statute, it has been uniformly held that the •essential elements in the crime are: (1) The woman must be innocent and virtuous — that is, that she has not previously had illicit intercourse with any man. (2) A promise of marriage. (3) An act of sexual intercourse, induced by the promise, and not by the lustful passions of the prosecutrix, and that “It is not sufficient that the prosecutrix shall be corroborated, but she must be supported by independent facts and circumstances” as to each element of the offense. “There must be some independent evidence or circumstance, and it must be independent of and other thaii that of the prosecutrix.” S. v. Ferguson, 107 N. C., 850. This supporting evidence may consist of evidence of good character, which supports the allegation that the prosecutrix is innocent and virtuous and that she yielded her person because of the promise of marriage, if the promise has been otherwise proven, admissions of the defendant, association with the prosecutrix, and attentions such as usually exist between engaged couples, and other relevant circumstances. S. v. Malones, 154 N. C., 202; S. v. Moody, 172 N. C., 970.

Applying these principles, I am of opinion that there is no supporting evidence as to the promise of marriage, and slight, if any, as to the act of intercourse or that the prosecutrix yielded her person because of the promise. The only evidence of this character relates to the visits and attentions of the defendant, and as to these the prosecutrix testified: “Defendant and I became acquainted in the summer of 1915. He came to see me occasionally, and I met him at church sometimes and he would take me home. I live with my father, 6 miles northeast of Louisburg. I can’t say how often he came. In the fall of 1916 we became engaged. On Christmas day, 1916, he came to my home and took me in his buggy and carried me to Mrs. Tharrington’s to spend the night, to take her and me the next day to Mr. Carter’s, near Youngsville. On the way to Mr. Tharrington’s that Christmas day he solicited me to have intercourse with him. He had promised to marry me, and I thought he would keep his word, and I yielded to him. We spent the night at Mr. Tharring-ton’s and went to Carter’s, and came back Thursday, and at my home Thursday afternoon, in the big room, near the window, he had intercourse with me again. I never received any letters from the defendant nor wrote him any. I did receive a note or two from bim tbat be would call. Haven’t got tbem now. I don’t remember saying at tbe justice of tbe peace trial tbat I had never written or received a line from defendant. I never told either one of my parents nor any one else tbat defendant bad promised to marry me or tbat be and I were engaged, until I told it on tbe witness stand when tbis case was on trial before tbe magistrate, 26 May, 1917. The warrant was issued 24 May, 1917. The reason I yielded to*defendant was because be told me if anything got tbe matter with me be would give me medicine to destroy it, or marry me. We were in tbe buggy, and stopped on the side of the road, near tbe crossroads, not far from Mount Gilead Church. I was sitting on the buggy. «seat when tbe act was committed. We were standing up when it was committed tbe second time, tbe next Thursday. It was in my father’s house. There were six or seven children there, and my'parents and some company. We were standing near tbe window, but the shade was down. Tbe act was not repeated, because I did not want to. I never bad sexual ■intercourse with Jim Finch, or Earle Wolfe, nor with Ira Cash, nor with Hugh Hayes, nor any other man, except defendant. My baby is a girl.”

The mother of prosecutrix testified: “That defendant visited her daughter from about 1915 till spring of 1917, once a month or so, and sometimes oftener, and stopped coming about April or May, 1917; tbat she did not believe or suspect tbat they were courting or engaged until her daughter told her so at tbe time she confessed her pregnancy.”

Tbe father of prosecutrix testified: “Defendant visited my daughter, Belle, two or three years and hauled her around. Nothing was ever said by him or her to me, or by me to either of them, about their being •engaged.”

Tbis does no more than show occasional visits and attentions of such character that they did not cause tbe mother to “suspect they were courting or engaged,” and falls far short of tbe conduct of tbe lover, who usually endeavors to appropriate all of tbe time of bis sweetheart.

The prosecutrix also testified that several young men visited her, and tbat she walked home with one of them, Earle Wolfe, from church, a distance of 2 miles, on the day she alleges the defendant first bad intercourse with her. The conversation of the prosecutrix with her mother after her pregnancy was discovered when she for tbe first time told of her ■engagement is corroborative — not supporting — evidence.

The evidence required by tbe statute, in addition to tbe evidence of tbe prosecutrix, as to the act of intercourse, is meager, if there is any.

. Tbe birth of the cKild on 25 September, 1917, is evidence of intercourse on 25 December, 1916, with some one, but not tbat tbe defendant was the person; and if it be said tbe defendant bad tbe opportunity, as be rode with tbe prosecutrix on Christmas day, so did Earle Wolfe, wbo walked witb ber in tbe country 2 miles on tbe same day and wbo was reported in tbe neighborhood to be engaged to tbe prosecutrix, was subpoenaed as a witness for tbe prosecutrix before tbe justice, but was .not examined, and wbo has since left tbe neighborhood.

Tbe child, a girl, was exhibited before tbe jury, but no witness either expressed tbe opinion that she was like tbe defendant or pointed to a single mark of resemblance, and on tbe contrary tbe prosecutrix, speaking of tbe only feature referred to by any witness, said tbe child “has black eyes; so have I; defendant’s eyes are gray.” Tbe defendant, wbo proved a good character, denied tbe promise of marriage and tbe intercourse. Tbe evidence that tbe prosecutrix submitted ber person to the. defendant because of tbe promise of marriage, and not to gratify ber own lust, would also be totally inadequate, but for tbe principle that tbe jury must pass on contradictory statements of witnesses, because, while she substantially testified on ber examination-in-chief that she yielded on account of a previous promise of marriage, she does not say marriage was mentioned at tbe time of tbe intercourse, and on cross-examination she testified: “Tbe reason I yielded to defendant was because be told me if anything got tbe matter witb me be would give me medicine to destroy it, or marry me. Tbe act was not repeated, because I did not want to.”

Tbe fact that two jurors have said tbe defendant is guilty has no bearing on tbe legal question presented. His Honor held as a matter of law that there was supporting evidence, and tbe juror, acting upon this ruling, bad tbe right to convict.  