dissenting: Revisal, 3360, makes it a felony “If any male person shall abduct or elope with tbe wife of another.” That is a complete offense. No other description is added. Tbe first proviso withdraws from tbe punishment, denounced upon a man who abducts or elopes with tbe wife of another, tbe case where such wife has not been “since her marriage an innocent and virtuous woman.” When, therefore, tbe State has shown that the prisoner has “abducted or eloped with tbe wife of another,” the prisoner may withdraw himself from criminal liability therefor, by showing, if be can, that she has not been a virtuous and innocent woman since her marriage. This is a matter of defense, not a part of tbe offense, and tbe burden of proving it, in order to withdraw himself from criminal liability for abducting or eloping with tbe wife of another, is upon tbe prisoner. Tbe Judge merely stated what is - the language of tbe statute.
*707Tbe second proviso, tbat “no conviction shall be bad upon tbe unsupported testimony of sucb married woman,” necessarily referred to tbe offense, tbe “abduction or elopement.” It could not possibly refer to tbe first proviso', for it needed no statutory provision to inform us tbat a man cannot be convicted of abduction or elopement upon tbe unsupported testimony of tbe woman tbat sbe was innocent and virtuous — tbe only purport of tbe first proviso. Whereas, but for this second proviso, her testimony of tbe abduction or elopement would be sufficient to convict, if believed by tbe jury.
Tbe statute, Revisa!, 3361, defines bigamy: “If any person, being married, shall marry' any other person, during tbe life of the former husband or wife,” and adds a proviso tbat tbe statute shall not apply (1) where tbe husband or wife of tbe prisoner shall have been absent seven years and not known to tbe prisoner to have been living within tbat time; (2) or, if tbe prisoner bad been lawfully divorced; (3) or tbe former marriage bad been declared void. It was held in State v. Goulden, 134 N. C., 743, tbat tbe State having shown tbe second marriage of tbe husband during the lifetime of bis wife, tbe burden was upon him to prove any of tbe above matters in defense. This is exactly in point. Just as here, the abduction of or elopement with tbe wife of another being shown, tbe burden was upon tbe prisoner, in order to deprive tbat act of liability to punishment, to show in exculpation and defense tbat this particular wife was sucb an one as eloping with or abducting her was not punishable. By proving tbat sbe came within tbe proviso, be can exempt himself, withdraw himself, -from coming within tbe statute.
This has been tbe uniform ruling of this Court as to provisos which withdraw tbe defendant, upon a certain state of facts, from liability under tbe broad general terms of tbe statute creating tbe offense. State v. Norman, 13 N. C., 222; State v. Call, 121 N. C., 649; State v. Welch, 129 N. C., 580. A very similar case to this was State v. George, *70893 N. C., 570, upon the sections next preceding that on which this trial was had for “abduction of a child/’ in which the Court held that the words of the proviso, “without the consent and against the will of the father,” was not a part of the description of the offense. There are a number of instances where there is no proviso, but where a circumstance, which is a descriptive part of the offense and must be so charged, is nevertheless to be proved, not by the State, but by the defendant. This is on the ground that such circumstance being a matter peculiarly within the knowledge of the defendant, the burden is on him to prove it as a defense. As in an indictment for embezzlement, Revisal, 3406, “not being an apprentice or other person under sixteen years of age,” must be charged, blit the defendant must show that he was under sixteen. State v. Blackley, 138 N. C., 622, and cases there cited. In prosecutions for retailing spirituous liquor, Revisal, 3529, the bill must charge that it was done “without license,” but the burden is upon the defendant to show that he had license. State v. Emery, 98 N. C., 668; State v. Smith, 117 N. C., 809; State v. Holmes, 120 N. C., 576, and a long line of authorities. In an indictment for fornication and adultery, Revisal, 3350, the bill must allege “not being married to each other,” but the burden is on the defendant to show that they are married as a matter in defense. State v. McDuffie, 107 N. C., 888; State v. Peeples, 108 N. C., 769; State v. Cutshall, 109 N. C., 769. In an indictment for entering upon land without license, Revisal, 3688, the bill must allege that the entry was “without license,” but the burden is on the defendant to prove license. State v. Glenn, 118 N. C., 1194.
In these and other similar instances the burden of proving the opposite of the matter charged is on the defendant, because it is a matter peculiarly within his knowledge, though it is a part of the description of the offense, and, if proved, will relieve the defendant of the presumption raised by proof of selling liquor, appropriation of money, cohabitation, entry *709on land after being forbidden, etc. But when, as here, the offense is completely defined and a proviso sets out circumstances which, if shown, withdraws the defendant from liability, the burden is on him for that reason, and not because the matter is one peculiarly within his knowledge. State v. Norman, supra, and other cases cited above.
Even where the statute, unlike ours, does not make the unchastity of the woman a proviso withdrawing the abductor from liability, but makes the chastity of the woman a part of the description of the offense, the courts hold that there is a presumption in favor of female virtue, and hence when the State has shown that the defendant has abducted or eloped with the wife of another man, the burden is on him to show that she was unchaste, as a matter of defense. In the absence of proof, the courts elsewhere will not presume that a woman, who is shown to have been abducted, was unchaste. Bradshaw v. People, 153 Ill., 159; Slocumb v. People, 90 Ill., 281; Griffin v. State, 109 Tenn., 32; People v. Brewer, 27 Mich., 138; Andre v. State, 5 Iowa, 389; State v. Higdon, 32 Iowa, 264.
BeowN, J., concurs in the dissenting opinion.