dissenting: It is witb regret that I cannot agree witb tbe majority opinion in tbis case.
Tbe statute under wbicb tbe defendant was indicted, C. S., 4209, is as follows:
“Obtaining carnal knowledge of virtuous girls between 12 and 14 years old. If any person shall unlawfully carnally know or abuse any female child over twelve and under fourteen years old, who has never before bad sexual intercourse witb any person, be shall be guilty of a felony and shall be fined or imprisoned in tbe State’s Prison, in tbe discretion of tbe court.”
Tbe Legislature of North Carolina, chapter 140, Session 1923, amended tbe above act to read as follows:
“If any male person shall carnally know or abuse any female child over twelve and under sixteen years of age, who has never before bad sexual intercourse witb any person, be shall be guilty of a felony and shall be fined or imprisoned in tbe discretion of tbe court; and any female person who 'shall carnally know any male child under tbe age of sixteen years shall be guilty of a misdemeanor and shall be fined or imprisoned in tbe discretion of the court: Provided, that if tbe offenders shall be married or shall thereafter marry, such marriage shall be a bar to further prosecution.”
Tbis act was passed 3 March, 1923, and went into effect 1 July, 1923. Tbe good women of tbe State used their influence witb tbe 1923 Legislature of North Carolina to extend tbe “age of consent” from fourteen to sixteen.
Tbe Legislature of tbe State in these acts used tbe words female child. Tbe purpose of these acts was to protect tbe girl children of tbe State, in their purity and innocency, from tbe unbridled passion and lust of evil, amorous men — human spiders — who would ensnare purity and innocency, and when caught in tbe net they would become helpless victims. To protect tbe female girlhood from them' that lay in wait and lurk privily to' destroy virtue. Tbe motive of tbe law-makers was *591for purity and virtue among tbe girl children of the State. Unconscious in tbeir innocent childhood as a bird caught and trapped in the snare and knoweth not that it is for her destruction.
Has the defendant violated this laudable statute? Was he tried fairly and convicted, as he was, by a jury of twelve men, and in accordance with the rules of law of this State? I think he was. Let us examine the facts in this case upon which the defendant was convicted. The defendant, Eobert J. Hart, and one H. S. Hicks were indicted jointly. Hicks is a fugitive from justice, and only Hart was on. trial. The child, Deloris Mangum, testified that she was 13 years old and living with her father and mother in Oxford. She knew both Hart and Hicks, the former about a year and the latter about six months. She had never been introduced to Hicks, but had talked to him on the streets. Hart was a clerk in a drug store in Oxford and Hicks was working in a highway construction office. Neither had ever visited her at her father’s home. On the night of 6 February Hart came to the front door of her home about six o’clock. Deloris Mangum testified: “1 went to the front door and he asked me if I did not want to go to the drug store and get a drink. I told him it was too late and that I was not dressed. He said that was all right, and I went to the kitchen and asked mother, and she asked who. Eobert Hart was, and I told her he was Allie Hart’s brother. She went to the door and I heard Eobert Hart tell her we would not be gone long. She said it was mighty late, but consented for me to go. I went with Eobert to the ear. It was a Ford coupé and had one seat. It was Hicks’ car and he was driving. ¥e turned and went up Pennsylvania Avenue to College Street corner and then turned to the left up College Street. If going to the drug store we should have turned to the right at the corner. I did not say anything when we turned to the left at the corner. I did not say anything when we turned up College Street instead of going to the drug store. We went up College Street and out on the asphalt road to the other side of the hospital, across the railroad track about 200 yards. Hicks was driving and stopped the car on the side of the road. Eobert Hart asked Hicks if he had a rubber. Hicks said No.’ Hicks said he would get out, Hart said no he would get out. Hart got out of the car and walked away up the road. Hicks asked me how long it was before my periods. I told him about two weeks, he said that was all right and told me to lie down. I laid down on the seat with my head next to t'he steering wheel. He kissed me. I unfastened my bloomers and he took one leg of them down. He then had sexual intercourse with me. I did not resist. Hicks got up and said nothing. 'Hart was standing at the door of the car. Hicks got out of the car and Hart got in. He said he was going to do what Hicks did. *592I told him he was not. He blew the horn and Hicks got in and turned the car around and we came back to town. I was in the ear alone with Hicks about seven minutes. On the way back we stopped to get the ice off of the windshield. There was snow and sleet on the ground. Hart told me to tell my mother the reason we were late they had a rush at the drug store. I do not know where my father was. Hart got out of the car and went to the door with me. My father came up and told him never to come there again and take me off. I went in the house and my mother asked me where I had been, and I told her they had insulted me and they treated me just like married folks. I did not tell my father. My mother told him. Dr. Watkins came after supper and examined me. I told him what had been done. I had never had sexual intercourse with any one before that time.” She stated that she would be 14 years old next September. On cross-examination she said that she did not know which one asked about the rubber, and she told her father that Hart had treated her like a gentleman.
Mrs. Mary Ella Mangum, the mother, and Elvis Mangum, the father, of Deloris Mangum, corroborated her in all material matters. Her mother testified that the morning of the preliminary examination “she was very nervous. She was a nervous wreck.”
Her father, Elvis B. Mangum, testified that when he got home in the evening his wife was nervous and worried and told him that Deloris had gone to the drug store with Robert Hart, and he immediately went in search of her.
Dr. Gr. S. Watkins, a physician who examined her, corroborated her and said: “I give it as my opinion that she had never had sexual intercourse with any person before this time,” and further, at the preliminary examination, “she was very nervous.”
On the preliminary examination Deloris Mangum said: “He told me to lie down, and laid me down. I did not attempt to resist. I did not say anything. I knew it was no use. He laid me down on the seat. After he laid me down he kissed me. I did not say anything. He got on me; he had intercourse with me. He did not say anything. When I saw Robert Hart he was standing at the car door. When Hicks got up he got out, and Robert got in.” In the Superior Court examination she said, “He said he was going to do what Hicks did. I told him he was not.”
There was testimony that the character of Deloris Mangum and that of her father and mother were good.
This was in substance the State’s testimony.
Robert J. Hart, the defendant, was examined in his own behalf, and his testimony corroborated that of Deloris Mangum in many particulars. He was 17 years old, and testified, in part: “I did not know that *593any such thing was going to be attempted. I left the store and got in the car with Hicks. I thought that he just wanted to meet the girl and that we would bring her to the store and get a drink.”
In the defendant's evidence are the ear-marks of the web that they were weaving for this young girl, and the conspiracy can be traced in defendant’s evidence. After trapping her, they destroy her character and thus obtain an acquittal. Cullom Hester testified that he saw Deloris Mangum and Alvin Eakes on 16 January, 1923, in a Ford roadster near a path that comes into the Salem road, and Charles Hester said that he was with his son and that his son said the boy and girl were Deloris Mangum and the Eakes boy. Ealph Turner testified that he was a student at Oxford High School, and that he saw Deloris Mangum get in a car in front of the High School building on the afternoon of 16 January and go out towards the Salem road. To like effect was the testimony of Bailey Currin. On cross-examination he said that Eobert Hart came to him and said, “I am in trouble with a girl and she has squealed on me, and you have got to help me out.” This is a plain admission by Hart, testified to by his own witness. The statute does not allow “consent” by a virtuous child.
The young men at the school, from this incident, commenced talking about Deloris Mangum. Alvin Eakes, in rebuttal of anything wrong, said that about 3 o’clock in the evening of 16 January, 1923, he did not have much to do and he got in his Ford roadster and went to the Oxford High School building, and stopped his car in front of the building. Deloris Mangum got in the car and he told her he would take her home, and he drove her around Oxford, but was never on the Salem road. This was in. the afternoon, about 3 o’clock — day-time. Deloris Mangum corroborated Eakes and denied she had ever met Charles or Cullom Hester on the afternoon of 16 January on the Salem road, and stated that she had known Eakes ever since she could remember. The incident of young Eakes and Deloris going to ride in the afternoon commenced to be whispered around. These young people (she a high-school girl) took a ride in broad daylight, with a playmate she had known all her life. The whispers started from evil minds.
What does the defendant Hart say on that fatal night for Deloris. Mangum, 6 February, 1923?: “Late in the afternoon of 6 February I left the store to get my supper. I went to my uncle’s, and when I came back up town I saw H. S. Hicks and a boy named Edward Gill at the foot of the steps leading up to General Boyster’s office. They were talking, and I came up, and Gill told Hicks that he knew a girl who was crazy to meet him. I said, T bet I know who it is.’ Gill said to me that I was thinking about that Mangum girl. I told him that I was not thinking of her especially. I went in Pittman’s drug store, *594which was next door to where we were standing. Hicks came in and sat down at a table with me. He asked me to go with him down to her home. I told him that it was too late, and that I had to go back to work in a few minutes. It' was nearly six, and I was supposed to be back at my work about six. He said that he would not be away but a few minutes and that we would bring the girl to the drug store. He said that his car was out there on the street. He said, ‘Come and let’s go,’ and that I could go straight back to work. I got in the car with him and went. When we got to Mr. Mangum’s I went in; a little boy met me at the door. I asked for Deloris Mangum, and she came to the door. I asked her if she did not want to go to the drug store and get a drink. She said that she did, but that she was not dressed. I told her that was all right, and to ask her mother. She went to ask her mother, and Mrs. Mangum came to the door. I spoke to her, and she said that she needed her daughter to help about the supper, but that she could go. We went and got in the ear; it was a Ford coupé, and Deloris Mangum sat between us.”
On cross-examination he testified: “Knew the hospital was not far from where the car stopped. I did not try to give any alarm after I got out of the car. There was snow on the ground. I got out and started back to town, and then I thought that I ought to go back, because I had invited the girl to go with us in the car. I went back to the car. I did not try to have intercourse with the girl. I had never made any plan with Hicks to get the girl out. I had talked with the girl before in the drug store, but had not had any conversation with her that day. When the car stopped near the hospital and Hides ashed me about the rubber, I knew what he was going to do. When I got out of the automobile 1 knew what was going to happen. I said to Hicks, ‘I’ll get out if you are going to do anything like that.’ I did not make any outcry or give any alarm. I did ask Deloris for an engagement the following night. I asked her how about coming to see her, and she said she didn’t know.”
This much of the crime, as charged, on all the evidence, ’ is undisputed :
1. That the child was under fourteen years old.
2. That she had never before had sexual intercourse with any person. (Her own testimony and that of Dr. Watkins, her physician.)
H. S. Hicks, who actually committed the crime, has fled from the State.
The only question of fact disputed is: Was Robert J. Hart an aider and abettor? The jury of twelve men has so found. Does the evidence justify this finding? Has the able and conscientious judge, W. M. Bond, who presided at the trial, committed any error in law?
*595The foul suspicion bad been whispered in the ears of the lustful young men at the bigb school and those loafing about the drug store. Gill and Hart and Hicks talking about the Mangum girl on the street, at the steps of General Royster’s office. . They go to Pittman’s drug store. Hicks and Hart sit down together in the drug store. They commenced talking about Deloris Mangum. The two agree to go down in Hicks’ car and bring the girl to the drug store. The two went together, in Hicks’ car. Hart goes in, and Hicks waits out in his car. Hart obtains Deloris Mangum’s mother’s consent, under a promise and trust that, he would take her, the little high-school girl, to the drug store, and bring her back. He took her that winter night from the mother and the home of her father, and as she stepped from her home to the snow on the ground she 'was as clean and pure and white as snow, from the evidence, and when he brought her back she was as a lily dipped in soot. Shall he be turned loose? A judge and a jury of twelve men in his own county say not. He says, “When the car stopped at the hospital and Hicks asked me about the rubber, I knew then what he was going to do.” They — Hicks and Hart — both knew all about the implement of the seducer and debaucher. Hart and Hicks took her away that cold winter night — these two conspirators — beyond the hospital, across the railroad some two hundred yards — away from the lights of the city into the darkness and night, to accomplish the deed. When the wrong was done, Deloris testified: “Hicks got up and did not say anything. Robert Hart was then standing at the door of the car. Hicks got out of the ear. Hart got in the car. He said he was going to do what Hicks did. I told him he was not.”
Hart, himself, who took this child to her ruin, said Deloris Mangum asked what she should tell her mother, and said to him, “Tell me something to tell her,” and he told her she could tell her mother that “we had had a rush at the drug store and I had to work, if she wanted to.”
The cry of this child. In her agony she thought of her mother. She was entrusted by her mother to Hart. What shall I tell her who suffered and bore me? Hart told her to tell her an untruth. He got her from the home under a false pretense, that he was going to take her to the drug store, and he returns her to tell an untruth. But she told her mother the truth. “I told my mother they had insulted me — they treated me just like married, folks.”
When the blood of Abel was spilled, Gain, who did the deed, was asked that momentous question, “Where is Abel, thy brother?” and he said, “I know not; am I my brother’s keeper?” Cain told an untruth. Hart, who aided and abetted, as found by the jury, told the child to tell an untruth to cover up his own wron'gdoing.
*596I have given the material facts as I conceive them to be, presented on the record. Now, as a matter of law, has the court below erred and not given the defendant a fair trial? In' accordance with the law of the land he is entitled to this. This is a land of law and orderly government. No man or set of men are above the law. The hope of civilization is obedience to law.
There is no difference between the majority opinion and myself that the defendant’s demurrer to the evidence, or, as defendant puts it, “at the conclusion of all the testimony the defendant again renewed his motion for judgment as of nonsuit,” that this motion was properly overruled, and there was sufficient evidence to go to the jury — that Hart was an aider and abettor.
The only debate is, during the progress of the trial did the court below commit error or prejudicial or reversible error ?
The law of what constitutes “aider and abettor” in the majority opinion is law so far as it goes, and the law as therein stated is _ sufficient on a new trial for the jury to pass on the facts, but our authorities go further.
In S. v. Cloninger, 149 N. C., 572, the Court says: “John Cloninger and Charles Costner were aiders and abettors. There is abundant evidence to sustain a conviction, where the bystander is a friend of the perpetrator and knows that his presence will be regarded by the perpetrator as an encouragement and protection.” S. v. Jarrell, 141 N. C., 725.
“A servant who stands passive and knowing that his employer is being robbed, permits it, is guilty as principal.” In re Sherman, 6 City Hall Record (N. Y.), 2.
Hart was intrusted with the care of Deloris Mangum and he stood by and saw her robbed of her virtue.
In the Jarrell case, supra, quoted in the majority opinion, Brown, J., says: “There is much in the conduct of Jarrell, according to the evidence, which indicates a design to encourage and aid Hicks in an assault. ‘When a bystander is a friend of the perpetrator and knows that his presence will be regarded as encouragement and protection, presence alone may be regarded as encouraging.’ Wharton, supra, sec. 211a, who cites many cases in support of the text. Jarrell was in a situation to be able readily to go to Hicks’ assistance if necessary. The knowledge of this was calculated to give additional confidence to Hicks. In contemplation of law this is aiding and abetting. Ib., sec. 211a; Thompson v. Com., 1 Metc. (Ky.), 13; S. v. Douglass, 38 La. Ann., 523; 15 Cox Or. Cases, 51, 52.”
In the majority opinion the following are treated as defendant’s main exception and assignments of error:
*597I will take up seriatim the position of the majority opinion under the “main exceptions.” '
I give the entire record of what took place, and not a part, as ex-bepted to.
(1) “At the close of all the evidence defendant moved for judgment of nonsuit, which was denied. The solicitor, as the court was about to take a recess for the night, in open court, and in the presence of the jury, addressed the court and prayed the defendant into custody. The defendant was under a bond of $1,000, which had been ordered given the previous week of the court, and under order of the court the bond was conditioned upon the appearance of the defendant each day during the term and to abide the orders of the court. In the presence of the jury the presiding judge ordered the defendant into the custody of the sheriff. No question was raised by the solicitor as to the sufficiency of the sureties on the bond. The court stated in the hearing of the jury that putting the defendant in custody did not mean at all that the court thought he was guilty. To both the prayer of the solicitor and the order ■ of the court in the presence of the jury the defendant excepted.” The statute was against the court giving “an opinion whether a fact is fully or sufficiently proven.” Ordering the defendant into custody was no opinion in regard to a fact fully or sufficiently proven.
The other defendant, Hicks, had ffed the court-. The court below has a sound discretion to make the order. The court said, in the presence and hearing of the jury, that “the putting the defendant in custody did not mean at all that the court thought he was guilty.”
There is no doubt about the law that in the court’s “sound discretion” it had the right to order the defendant into custody. “'While the necessity for exercising this discretion in any given case is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment, in an effort to attain the end of all law, namely, the doing of even and exact justice, we will yet not supervise it except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited.” Jarrett v. Trunk Co., 142 N. C., 469; May v. Menzies, ante, 144; S. v. Hopper, ante, 405.
The complaint is that it was made in the presence of the jury. This Court upheld a remark in the presence of the jury, a clear inference of the impeachment of a witness, and no explanation was made by the court to disabuse the minds of the jury. In that case, the Trust Company, 183 N. C., 41, Stacy, J., says: “There is one exception of a different nature, however, which calls for further discussion. We quote from the record: 'During the taking of the testimony, pending argument as to the competency of certain questions and answers and ex-
*598planations offered by tbe witness, tbe court, in tbe presence and bearing of tbe jury, asked tbe question wbetber tbe witness was appearing as attorney or as a witness, stating that tbe court was just at tbis point unable to see.’ To tbe foregoing remark of tbe trial judge tbe defendant excepts, wbicb is defendant’s fifteenth exception. Some difficulty bas been experienced in arriving at a satisfactory conclusion as to wbat disposition should be made of tbis exception and assignment of error. But as it does not appear with certainty that tbe defendants have been prejudiced, or disadvantageously circumstanced before tbe jury, by tbe remarks of tbe judge, we must overrule tbe motion for a new trial based upon tbis portion of tbe record. ‘Appellant must show error; we will not presume it, but be must make it appear plainly, as tbe presumption is against him.’ In re Smith’s Will, 163 N. C., 464. See, also, Michie Digest, 695, and authorities collected under title ‘Burden of Showing Error.’ ”
In tbe instant case, tbe court told tbe jury that tbe putting tbe defendant in custody did not mean that tbe court thought be was guilty. I take it that tbe court told tbe jury tbe truth.
Tbe majority opinion says:
(2) In tbe course of bis Honor’s charge to tbe jury be said: “Tbe law used to be if a man bad connection with a girl under 10, it was a capital felony, and if between tbe ages of 10 and 12, it was a felony, if she bad never before bad sexual intercourse. Tbe Legislature later moved tbe age of consent up to 14 (and a few days ago one House of tbe Legislature passed a bill, I believe, moving tbe age of consent up to 16 years).”
Tbe full text of tbe court’s charge was as follows:
“It makes no difference wbetber tbe girl was willing or not, if she was between 12 and, 14 years of age, and bad never .before bad sexual intercourse with any person. Tbe law says such a girl cannot consent. If such girl were under 12 it would be a capital offense. Tbe law used to be if a man, bad connection with a girl under 10, it was a capital felony, and if between tbe ages of 10 and 12, it was a felony, if she bad never before bad sexual intercourse. Tbe Legislature'later moved tbe age of consent up to 14, and a few days ago one House of tbe Legislature passed a bill, I believe, moving tbe age of consent up to 16 years.”
Tbe charge, when considered as a whole, is very different from only tbe part wbicb is excepted to. Tbe Legislature did exactly wbat tbe judge said.
Tbe majority opinion says:
(3) “Again in tbe charge: ‘The defendant introduced certain character witnesses, tbe Rev. Mr. Black, tbe chief of police, a man named *599Floyd, and several others. They all stated bis character was good. You will remember who the witnesses were and what they said. In answer to this character evidence, the State contends that neither of these character witnesses said Hart didn’t go out with Hicks to have connection with the girl, and did not testify as to what did or did not take place.”
If the record is examined carefully, this is stated in the “contentions,” not “again in the charge,” as stated in the majority opinion. The full portion of the charge is: “Bobert J. Hart testified as to meeting Hicks and Gill; that he went with Hicks to Mr. Mangum’s home and got Deloris, and that they got in the automobile and went up College Street, and went out beyond the hospital; that Hicks asked him ‘Where is the rubber?’ that he said, ‘If you want to do anything like that I am going to get out.’ That he got out and loitered around; that he went back home in the car with them, got out and told Mr. Mangum he was a gentleman; that he thought Hicks wanted him to 'go with him to Mr. Mangum’s house to introduce the girl to him; that Hicks did not give any other reason for asking him to go. The defendant introduced certain character witnesses, the Eev. Mr. Black, the chief of police, a man named Floyd, and several others. They all stated his character was good. You will remember who the witnesses were and what they said. In answer to this character evidence, the State contends that neither of these character witnesses said Hart didn’t go out with Hicks to have connection with the girl, and did not testify as to what did or did not take place.”
The judge’s erroneous statement of a contention of a party must be called to his attention at the time. It cannot be taken advantage of by an exception to the charge after verdict. S. v. Tyson, 133 N. C., 692; S. v. Davis, 134 N. C., 633; S. v. Lance, 149 N. C., 555; S. v. Kincaid, 183 N. C., 710; S. v. Baldwin, 184 N. C., 789. In this case it was not erroneous.
The majority opinion says:
(4) “Still again in the charge: ‘Every case of this nature, if the defendant’s guilt be established, which results in an acquittal, tends to injure society.’ ”
The record on this is as follows: “The defendant contends that he never attempted to have connection with the girl, and that he did not know Hicks’ intention; that he has fully explained the matter, has shown his character to be good, and that the jury should acquit him. In reply to that the State contends that if it had not been upon a concerted plan to get her out there and for one or the other to have intercourse with her that Hart could and would have prevented it. The State contends that by getting her out he aided Hicks, and if he had *600not aided Hicks he would have told' Mr. Mangum upon his return. Among other statements by the judge, he remarked: ‘Every case of this nature, if the defendant’s guilt is proven, which results in an acquittal, tends to injure society.’ ”
This was said in reference to the State’s contention (there is no error unless called to the attention of the court. Cases supra).
(5) And again in the charge: “I am not appearing for either side; I am not interested in Mr. Hart’s acquittal, and I am not especially interested in his conviction, but I am interested in seeing that both the State and the prisoner have a perfectly fair trial.”
The record on this is as follows: “At this point counsel for the defendant asked the court, in stating the contentions of the defendant, to call attention to Hart’s evidence that when the automobile turned down College Street instead of toward the drug store that he, Hart, asked them to go to the drug store; with which request the court complied. The court then stated that both the State and the prisoner were entitled to an absolutely fair and impartial trial, and added, I am not appearing for either side. I am not interested in Mr. Hart’s acquittal, and I am not especially interested in his conviction, but I am interested in seeing that both the State and the prisoner have a perfectly fair trial.”
The majority opinion says:
(6) “The defendant also excepted because in the charge his Honor repeatedly called the attention of the jury to the contentions of the State, while but slight reference was made to the contentions of the defendant.” The entire charge shows he gave the contentions of both sides.
The majority opinion says:
(7) “Finally, the defendant excepted for that his Honor failed to instruct the jury as to the law relating to aiding and abetting, but simply charged the jury that the defendant- Hart would be guilty if he aided or abetted Hicks, without any explanation or instruction as to what constituted aiding and abetting.”
Webster defines aider “one who, or that which, aids”; and defines aids “help, support, succor, assistance, relief”; abettor “one who abets, an instigator of an offense or an offender”; abet “to instigate or encourage by aid or countenance.” The simple words, aiding and abetting, and what constitutes the explanation, are the words themselves. The contentions given by the court showed what was aiding and abetting, without actually defining so common and well-known words. The law was given in the contentions.
The majority opinion does not single out one particular error made in the court’s charge. It is a broadside attack to the court’s conduct below in the trial of this cause.
*601Judge Ruffin, in S. v. Angel, 29 N. C., 27, said: “His Honor, undoubtedly, did not transcend bis powers and duty, under tbe act of '1796, in delivering bis charge to tbe jury. Tbe Tacts/ on wbieb tbe act restrains bim from expressing an opinion to tbe jury, are those, respecting which tbe parties take issue or dispute, and on which, as having occurred or not occurred, tbe imputed liability of tbe defendant depends. But tbe act does not prohibit tbe judge from drawing attention to things that occur in court and speaking of them as having ■actually occurred there.” In that case tbe charge was affirmed in what was excepted to. “In the course of tbe charge to tbe jury, tbe presiding judge remarked That tbe witnesses differed in their accounts of tbe transaction/ and then recapitulated their testimony as to tbe manner in, which tbe reencounter took place; and after some instructions upon matters of law be remarked further that, ‘according to tbe testimony of tbe prisoner’s witnesses, tbe mortal blow was given at or about tbe commencement of tbe reencounter.’ Tbe judge informed tbe jury that they were tbe judges of tbe truth and weight of tbe testimony of tbe witnesses.”
Chief Justice Smith, in S. v. Robertson, 86 N. C., 628, said: “Another witness bad testified to tbe disorderly character of tbe bouse, and to bis having come to tbe solicitor at tbe instance of another to report a case of retailing liquor without license, against tbe defendant, and bad then mentioned tbe disorderly conduct of tbe defendant, and was cross-examined at great length upon those matters, in order to prove bis ill-will and prejudice towards tbe accused, when bis Honor remarked that tbe counsel bad carried tbe examination in that direction far enough, and that it was tbe duty of a good citizen to report crime when inquired of by tbe solicitor.- Tbe exception is to tbe latter part of tbe remark, as violating tbe act of 1796. We think tbe expression used was pertinent and proper, and correct in itself. It certainly becomes a law-abiding citizen to convey, not to withhold, any information be may possess, when interrogated by tbe prosecuting officer of tbe State, and tbe act is not to bis discredit.”
Tbe same Chief Justice said, in S. v. Brown, 100 N. C., 524: “Tbe exception to tbe inquiry of tbe judge, addressed to counsel of defendant, if it would be fair to permit a declaration of an absent person, imputing criminality to tbe prosecutrix, to be given in, and refuse to hear bis subsequent denial of tbe truth of tbe charge, was but an expression of a wish and purpose to have a fair trial, tbe natural impulse of an impartial and just judge conducting tbe trial. It is argued here as an indication of an opinion upon tbe merits of tbe controversy forbidden by tbe act of 1796, Tbe Code, sec. 413. It does not appear to us susceptible of any such interpretation, and, at most, as but an inti*602mation to counsel that such a course, if pursued, would not be sustained in tbe ruling upon tbe matter.”
In S. v. Jacobs, 106 N. C., 695, tbe following was beld: “A remark' of tbe judge made before trial begun, tbat tbe jailer bad informed him tbe prisoner ‘would escape if be bad tbe opportunity,’ is not an expression of opinion upon tbe facts prohibited by tbe act of 1196.” Clark, J., in tbat case said: “It is difficult to see bow tbe remark of tbe judge violated any provision of this statute. No juror bad been selected, tbe remark was not in tbe presence of tbe jury, nor did it contain any opinion tbat ‘a fact was fully or sufficiently proven.’ No facts bad been shown in evidence. Indeed, bad tbe jury been impaneled, tbe statute prohibited tbe judge ‘from expressing an opinion only upon those “facts” respecting which tbe parties take issue or dispute, and on which, as having occurred or not occurred, tbe imputed liability of tbe defendant depends.’ ”
In S. v. Crane, 110 N. C., at p. 535, it is said: “If juries should be deemed incompetent to comprehend, or unable to obey, so plain a direction as tbat a paper read in their bearing is ‘not to be considered as evidence, and tbat it bad only been admitted to make tbe defendant’s reply to it (when read to him) intelligible’ — if so low an estimate should be placed upon juries, then tbe jury system is a failure, and should have no place in our jurisprudence. If unable to comprehend this, why so often contention whether instructions, frequently far more abstruse, should be given to tbe jury. But such a view is an unjust one; tbe jury is an essential part of tbe judicial system among every English-speaking people, and while not perfect, tbe experience of ages and tbe observation of tbe present are tbat it performs fairly well its part. Certainly no better substitute has ever been found.- To underrate tbe intelligence of twelve honest impartial men who try tbe questions of fact submitted to them is a mistake. When aided by a just and intelligent judge, their verdicts are generally correct. Jurors are not expected to possess legal training. Their province is not to pass on questions of law. But their grasp of tbe facts is usually just and accurate, and probably not a court passes tbat upon the jury there are not men of equal mental capacity with tbe judge who presides, or tbe counsel who addresses them. Jurors are not in their nonage, and it is not just to underrate their intelligence.”
In S. v. Baldwin, 178 N. C., 687, upon tbe following facts, tbe remarks of tbe judge was found to be not improper: “Where a large quantity of spirituous liquor was found in tbe possession of two persons, separately indicted under tbe statute making such possession evidence tbat it was for tbe unlawful purpose of sale, a remark of tbe judge in sentencing one of them, upon bis conviction, tbat be thought *603both persons accused bad been selling and delivering tbe liquor at a certain town, is not in tbe contemplation or meaning of Eev., 535, prohibiting tbe judge from giving an opinion whether a fact is fully or sufficiently proven on tbe trial of tbe. other defendant.” See cases cited. See, also, S. v. Laxton, 78 N. C., 564; S. v. Robertson, 121 N. C., 551; S. v. Dewey, 139 N. C., 560; McDonald v. McArthur, 154 N. C., 11; S. v. Rogers, 168 N. C., 116; Long v. Byrd, 169 N. C., 659; 16 C. J., secs. 2311 et seq.
. Tbe cases cited in tbe majority opinion are not applicable to tbe c.ourfs conduct of this cause. If they were applicable, I would take it that what tbe court said was tbe truth, which would cure any intimation on tbe facts, if there was any, and tbe court was honest when it told tbe jury “I am not appearing for either side. I am not interested in Mr. Hart’s acquittal, and I am not especially interested in bis conviction, but I am interested in seeing that both the State and the prisoner have a perfectly fair trial.”
In commencing tbe charge to the jury, the able, conscientious judge who tried this case (I want to commend it) said:
“Gentlemen of tbe jury, men are never called upon to perform a more sacred duty than that of serving upon juries. In this day of unrest and criticism of tbe courts and of government agencies generally, it behooves you and me and all who participate in tbe conduct of our courts to conduct ourselves upon such a high plane that no one may find room to criticize us or our government. It is absolutely essential that every man who is being tried and every man who is being sued shall have an absolutely fair and impartial trial. Any other sort of trial is a farce and a fraud. It is your duty to bear tbe evidence and tbe instructions of tbe court in this case, or any other ease in which you may be called upon to serve as a juror, and then march up like men and under your oath render your verdict according to tbe evidence, guided by instructions' of tbe court, regardless of public sentiment or your own personal inclinations or wishes. "When jurors try cases upon such a high plane there is no room left for tbe anarchist to criticize our government and our courts. I am not going to require that you be kept together during tbe progress of this trial because in my long experience on tbe bench I have observed that jurors are mindful of tbe oath they have taken, and I have never yet bad one wilfully commit a wrong. They sometimes make mistakes, as I do, but I have never known a jury to wilfully violate its oath. Let me repeat: be careful that you discuss this case with no one and that you permit no one to discuss it in your presence or bearing. If any one attempts to discuss tbe case with you, tell him that you are on tbe jury, and if then be insists upon discussing it, you report tbe fact to me.”
*604In almost the final words of the charge he told the jury, “I am interested in seeing that both the State and the prisoner have a perfectly fair trial.” I take it that the twelve jurors of Granville County who tried this case were selected according to law. The board of county commissioners did what the law said they should do. “The board of county commissioners . . . shall cause ■ their clerks to lay before them the tax returns of the preceding year for their county, from which they shall proceed to select the names of all such persons as have paid all the taxes assessed against them for the preceding year and are of good moral character and of sufficient intelligence.” C. S., 2312. Thgl they were men of “good moral character and sufficient intelligence.” That they could understand what a court said, that both the State and prisoner should have a perfectly fair trial. The trial should be perfectly fair. Can there be any misunderstanding what that meant ? The language is clear and explicit, more than a “perfect” fair trial but perfectly. What is Webster’s definition of “perfect”? “Without flaw, fault, blemish; without error, mature, whole, pure, sound, right, correct.”
The last thing the court told the jury was this: “The court stated to the jury that they were the sole judges of the facts, that the judge did not intend by anything said by him, to intimate that the court had any opinion as to whether the prisoner was guilty or not guilty, that it was for them to say how they found the facts to be from the evidence in the case under instructions given as to the burden of proof.”
It has been often said by this Court, but I repeat it again: “Verdicts and judgments are not to be set aside for harmless error, or for mere error and no more. To accomplish this result, it must be made to appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to a denial of some substantial right.” In re Ross, 182 N. C., 477; Burris v. Litaker, 181 N. C., 376; Wilson v. Lumber Co., ante, 56.
This is my first written dissent. I feel impelled by the facts as appear in the record 'to do so. I do so with all respect for those who disagree with me.
“To tliine own self be true; And it must follow, as tbe night the day, Thou can’st not then be false to any man.”
I believe that the courts are made to administer law; no man, or set of men, have any right to take the law in their own hands.
This commonwealth has seen fit to make a law to restrain the vileness of men and protect girlhood. This young man has been tried by an upright judge and a jury of “good moral character and sufficient *605intelligence,” and convicted. He bas been defended by able and brilliant counsel. He bas been, in my opinion, fairly tried and convicted. I can see no prejudicial or reversible error. I commend most heartily tbe conduct of those concerned in this case in tbe orderly procedure— appealing to law. It is tbe only safe course. Tbe courts are for tbe redress of wrongs — there is nowhere else in a land of law.