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 *739nor 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 *740be 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.