STACY, C. J., dissenting.
WINBORNE and DENNY, JJ., concur in dissent. The defendant Davis and Lola Mae Reeves were indicted for fornication and adultery under the statute G.S. 14-184. Lola Mae Reeves tendered plea of nolo contendere which was accepted by the State. Defendant Davis pleaded not guilty and was put to trial before the jury.
Lola Mae Reeves testified for the State, over objection of the defendant, that while she was living in the Free Will Baptist Orphanage at Dunn, of which defendant Davis was superintendent, and occupying a room near the bedroom of the defendant, she had sexual relations with him as many as six times during a period of three months, beginning March 1, 1947. Defendant used contraceptives. At that time she was fourteen years of age. Without objection she testified she had never had sexual intercourse with any person other than defendant.
The State offered, over objection, the testimony of the matron, Miss Wooten, that Lola Mae Reeves told her when questioned that she had had intercourse with defendant six times. This was admitted only for purpose of corroborating Lola Mae Reeves.
Martha Raines, another girl in the orphanage, aged fifteen years, testified she was asked by defendant to come to his bedroom at night, and that she refused. Over objection she testified also he came to her room and got in bed with her, and she resisted his advances.
C. A. Jackson, Chairman Board of Trustees of the Orphanage, testified that the defendant, in a conversation about his conduct and his relations with Lola Mae Reeves, admitted it. "He said he was guilty." To this defendant excepted. However Adams testified without objection that defendant told him he was guilty of having sexual relations with Lola Mae Reeves. A letter written by defendant to Lola Mae Reeves, expressing *Page 388 regret for what had taken place, was also offered in evidence, over defendant's objection.
There was verdict of guilty as charged, and from judgment imposing sentence the defendant appealed. The defendant noted numerous exceptions to the rulings of the trial court, but the principal attack made on the validity of the verdict and judgment below was on the ground that Lola Mae Reeves and Miss Wooten were rendered incompetent to testify against the defendant by the proviso in the statute defining the criminal offense of fornication and adultery that "the admissions or confessions of one shall not be received in evidence against the other." G.S. 14-184. However, we think this statutory prohibition relates to extra-judicial declarations and does not have the effect of preventing one jointly charged with this offense, who is no longer on trial, from testifying as a witness in the trial of the other to facts, otherwise competent, which are within her personal knowledge. Though indicted with defendant Davis, at the time Lola Mae Reeves testified as a witness her plea of nolo contendere had been accepted by the State and she was not on trial. She was not making a confession or an admission but testifying as a witness in support of the State's charge against the defendant Davis.
The words "admissions or confessions" may not here be regarded as synonymous with testimony. These terms usually refer to extra-judicial declarations made to others and which subsequently are offered in evidence against the party who made them. An admission or confession is not testimony but a fact to be proven by testimony. The prohibition of the statute is directed not to the person testifying but against the use in evidence of his previous admissions or confessions. S. v. Rinehart,106 N.C. 787, 11 S.E. 512; S. v. Williams, 129 N.C. 581, 40 S.E. 84; 20 A. J. 472, 2 Wigmore, sec. 816, 1048. True, the admissions of one defendant are not ordinarily admissible against his co-defendant under the general rules of evidence regardless of this statute, but the declaration by the Legislature of a rule of evidence already recognized should not be held as suggesting a different legislative intent but rather as cumulative.
The offense of fornication and adultery came under the ban in North Carolina as early as 1741. Potter's Laws, 144. In 1805 the amended statute denouncing such conduct concluded with the proviso "that the evidence of the person who may be particeps criminis shall not be *Page 389 admitted to charge any defendant under this Act." This language was retained in the Revised Statutes of 1836, but in the Revised Code of 1854 the qualifying clause was modified to provide "that the admissions or confessions of one shall not be received in evidence against the other." This form of expression has been retained unchanged in all subsequent codifications. G.S. 14-184. Interpreting this statute this Court in 1877, in S. v. Phipps, 76 N.C. 203, approved the competency of the testimony of a co-defendant under circumstances substantially similar. In that case the defendants were indicted for fornication and adultery under this statute. After a nolle prosequi had been entered as to the feme defendant she was introduced as a witness to prove the charge against her codefendant. Replying to the question presented by the appeal, "was she a competent witness for that purpose," this Court answered that she was. While the Court in its opinion in that case did not specifically cite this statute, it may not be deduced that the Court was inadvertent to the language of a statute it then had under consideration, and the question had been called to the attention of the Court in the defendant's brief where it was argued as here that the testimony of the feme defendant in open court was an "admission."
With this decision indicating the Court's interpretation of the effect of the language of the statute on the reception of the evidence of a codefendant, announced in 1877, the statute has remained unchanged through subsequent re-codifications. We think the question should be regarded as definitely settled against the defendant's contention. In S. v. Guest,100 N.C. 410, 6 S.E. 253, it was said: "In the case of S. v. Phipps,76 N.C. 203, a nol. pros. was entered as to the female defendant, and she was allowed to testify, and prove the offense charged against the other defendant." In S. v. Roberts, 188 N.C. 460, 124 S.E. 833, the feme defendant's declarations tending to inculpate the male defendant were held admissible in evidence against him on the ground as stated by Chief JusticeHoke, that they were made in the male defendant's presence. In S. v.Rinehart, 106 N.C. 787, 11 S.E. 512, the extra-judicial admissions of the male defendant to a third person were held excluded from reception in evidence against the feme defendant under this statute. This would seem to indicate the purpose and extent of the enactment.
When the legislative prohibition is against the person testifying appropriate language to that effect is used. In G.S. 8-51 it is declared an interested party "shall not be examined as a witness" in his own behalf against the administrator of the deceased person, and in G.S. 50-10 the language is "neither husband nor wife shall be a competent witness to prove adultery." This latter categorical prohibition as to the person is in addition to the proviso in the same section that the "admissions" of *Page 390 neither party shall be "received in evidence," which would seem to mark the distinction.
The trend of the development of the rules of evidence has been to open rather than close the avenues to legal proof of facts in issue, and to remove personal disqualification to testify. G.S. 8-49. Evidence is the means whereby the truth of a matter may be established, and its production should not be barred unless clearly prohibited by statute, or in the interest of a well-defined public policy. In the absence of either in this case we see no substantial reason why one who had been jointly charged should not have been permitted to testify against the defendant then on trial.
It follows, if Lola Mae Reeves was competent to testify as a witness in the trial, it was also competent for the State to support her testimony by corroborating evidence, offered after she had gone upon the stand, that she had made substantially the same statement to Miss Wooten at the inception of the investigation, and Miss Wooten's testimony was by the court carefully restricted to this purpose. S. v. Williams, supra, 140 A.L.R. 169; S. v. McKeithan, 203 N.C. 494, 166 S.E. 336; S. v. Gore,207 N.C. 618,178 S.E. 209. Nor can the defendant's exception to the testimony of the witness Jackson that the defendant Davis, in the course of a conversation about the latter's relations with Lola Mae Reeves, said "he was guilty." If, as suggested, he was then referring to another charge bottomed on sexual relations with her, it was competent as an admission of acts which with other similar acts tended to prove the offense of fornication and adultery. S. v. Abernethy, 220 N.C. 226 (230), 17 S.E. (2) 25; Commonwealth v. Elliott, 292 Pa. 16; S. v. Willis, 71 Conn. 293. A similar admission made by defendant Davis to the witness Adams was received without objection.
The defendant's exception to the testimony of Martha Raines, another young girl who was living in the orphanage at the time, that defendant made improper advances to her, cannot be sustained. This evidence was competent as showing the attitude, animus and purpose of the defendant, and as corroborative of the State's case. In S. v. Edwards, 224 N.C. 527,31 S.E.2d 516, where the defendant was charged with carnal knowledge of his young daughter, another daughter was permitted to testify that he had made advances of similar nature to her. See also S. v. Harris, 223 N.C. 697 (701), 28 S.E.2d 232, where the rule is aptly stated.
The defendant noted exception to certain portions of the judge's instructions to the jury, but upon examination of the entire charge, and considering it contextually, we observe no prejudicial error. The court properly instructed the jury that if they found beyond a reasonable doubt that the defendant Davis and Lola Mae Reeves, not being married to each *Page 391 other, engaged in sexual intercourse with each other with such frequency during the period to which the testimony related, that these illicit relations were habitual, they should return verdict of guilty. S. v.Davenport, 225 N.C. 13 (17), 33 S.E.2d 136.
The burden was on the defendant to show prejudicial error. To warrant a new trial it must be made to appear that the rulings of the court below, now complained of, were material and prejudicial to his rights, and that but for such rulings a different result probably would have ensued. S. v.King, 225 N.C. 236, 34 S.E.(2) 3.
The evidence was sufficient to warrant submission of the case to the jury, and defendant's motion for judgment of nonsuit was properly overruled. The defendant offered no evidence, and the jury accepted the State's evidence and found the defendant guilty as charged. We discern no sufficient reason for disturbing the result. The verdict and judgment will be upheld.
No error.