#### STATE v. CONNOR.

(Filed December 18, 1906).

Elopement — Abduction—Proviso—Exception—Burden of Proof — Evidence—Character.

1. In an indictment under Rev., sec. 3360, providing that if any male person shall abduct or elope with the wife of another he shall be guilty of a felony, provided the woman since her marriage has been an innocent and virtuous woman, and provided no conviction shall be had upon the unsupported testimony of the woman, the Court, erred in putting the burden of proving the facts of the first proviso on the defendant.

2. Where the words contained in a proviso or exception are descriptive ■ of the offense and a part of its definition, it is necessary, in stating the crime charged, that they should be negatived in the indictment, and where the statute does not otherwise provide, and the qualifying facts do not relate to the defendant personally, and are not peculiarly within his knowledge, the allegation, being a part of the crime, must be proved by the State beyond a reasonable doubt.

3. In an indictment for abduction and elopement, under Rev., sec. 3360, where the character of the woman is, by express terms of the statute, directly in question, evidence as to her general character for virtue was properly admitted.

Clabk, C. J., and BkowN, J., dissenting.

INDICTMENT f or criminal elopement, beard by Judge Fred. Moore and a jury, at the April Term, 1906, of the Superior Court of Buncombe. There was a verdict of guilty and judgment, and defendant excepted and appealed.

*701 Robert D. Gilmer, Attorney-General, for tbe State.

Frank'Carter and H. G. Ghedester for tbe defendant.

Hoke, J.

Tbe statute under wbicb tbe conviction was bad, Revisa!, sec. 3360, is as follows:

“If any male person shall abduct or elope witb tbe wife of another, be shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year nor more than ten years: Provided, that tbe woman, since her marriage, has been an innocent and virtuous woman: Provided, that no conviction shall be bad upon tbe unsupported testimony of any such married woman.”

Defendant, by exceptions properly noted, assigns for error:

1. That tbe Judge erred in charging tbe jury that tbe burden was on tbe defendant to prove that tbe “woman in tbe case” was neither innocent nor virtuous.

It is well established that when a statute creates a substantive criminal offense, tbe description of tbe same being complete and definite, and by subsequent clause; either in tbe same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment, nor is proof required to be made in the first instance on the part of the prosecution.

In such circumstance, a defendant charged witb tbe crime, who seehs protection by reason of the exception, has tbe burden of proving that he comes within the same. State v. Heaton, 81 N. C., 543; State v. Goulden, 134 N. C., 743.

These limitations on tbe clause creating tbe offense being usually expressed under a proviso, we find the rule frequently stated: “That when a proviso in a statute withdraws a case from the operations of the body of tbe section, it need not be negatived in the indictment.”

This statement is entirely correct so far as noted in cases where the same has been applied, and will be found generally *702sufficient for the determination of questions arising under statutes of this character.

The test here suggested, however, is not universally sufficient, and a careful examination of the principle will disclose that the rule and its application depends not so much on the placing of the qualifying words, ox whether they are preceded by the terms, “provided” or “except”; but rather on the nature, meaning and purpose of the words themselves.

And if these words, though in the form of a proviso or an exception, are in fact, and by correct interpretation, but a part of the definition and description of the offense, they must be negatived in the bill of indictment.

In such case, this is necessary, in order to make a complete statement of the crime for which defendant is prosecuted.

In State v. Abbey, 29 Vt., 60, it is said:

“Whether an exception'in a statute is to be negatived in a pleading, or whether they are mere matters of defense, depends upon their nature, and not upon their placing or upon their being preceded by the words ‘except’ or ‘provided.’ ”

And again:

“The exceptions in a penal statute required to be negatived are such as are so incorporated with and a part of the enactment, as to constitute a part of the definition or description of the offense.”

Our own decisions are in support of this proposition. State v. Norman, 13 N. C., 223; State v. Lisle, 78 N. C., 496; State v. Burton, 138 N. C., 576. See, also, Clark’s Criminal Procedure, pp. 272 and 273, which gives a very full and satisfactory statement of the doctrine.

This being the correct test, we think it clear that the words in the statute here considered and contained in the first proviso are, and were intended to be, a part of the description of the offense.

*703It does not withdraw a case from the operation of the body of the section in which a definite substantive offense is created, but it adds a qualification to the offense itself.

As said by Henderson, J., in State v. Norman, supra:

“We find in the acts of our Legislature two kinds of provisos — the one in the nature of an exception, which withdraws the case provided for from -the operation of the act, the other adding a qualification, whereby a case is brought within that operation. Where the proviso is of the first kind it is not necessary in an indictment, or other charge, founded upon the act, to negative the proviso; but if the case is within the proviso it is left to the defendant to show that fact by way of defense. But in a proviso of the latter description ’the indictment must bring the case within the proviso. Eor, in reality, that which is provided for, in what is called a proviso to the act, is part of the enactment itself.”

This interpretation is confirmed by the highly penal nature of the statute, making the offense a felony, and imposing a punishment of not less than one or more than ten years.

Such a penalty was never intended to be imposed on one who should elope with a wife separated from her husband, and who was an abandoned prostitute, and such a statute was in all probability only passed to protect women who had been innocent and virtuous, and to punish the criminal who had wronged and debauched them.

This view finds further support in the second exception, which provides that the unsupported testimony of the woman herself should not warrant a conviction; evidently contemplating that the burden of the first proviso was on the State; for it is only as to facts included' in the first that the testimony of the woman was likely to be important.

The words contained in the first proviso being descriptive of the offense and a part of its definition, it is necessary, in stating the crime charged, that they should be negatived in the bill of indictment.

*704And wherever this is required and the statute does not otherwise provide, and the qualifying facts do not relate to defendant personally and are not peculiarly within his knowledge, the allegation must be made good, by proof; and, being part of the crime, must be proved by the State, and beyond a reasonable doubt. State v. Crowder, 97 N. C., 432; State v. Wilbourne, 87 N. C., 529.

The correct doctrine as to the rule and the exceptions to it is well stated in Archbold’s Criminal Pleading, as follows:

“In indictments upon statutes we have seen (ante, p. 53) that .where an exception or proviso is mixed up with the description of the offense, in the same clause of the statute, the indictment must show, negatively, that the party, or the matter pleaded, does not come within the meaning of such exception or proviso. These negative averments seem formerly to have been proved in all cases by thé prosecutor; but the correct rule upon the subject seems to be that in cases where the subject of such averment relates to the defendant personally, or is peculiarly within his knowledge, the negative is not to be proved by the prosecutor, but, on the contrary, the affirmative must be proved by the defendant, as matter of defense; but, on the other hand, if the subject of the averment do not relate personally to the defendant, or be not peculiarly within his knowledge, but either relate personally to the prosecutor, or be peculiarly within his knowledge, or at least be as much within his knowledge as within the knowledge of the defendant, the prosecutor must prove the negative.”

The general rule is that what is necessary to be charged as a descriptive part of the offense is required to be proved; and all of the decisions in this State which we have noted, or which have been called to our attention where the rule has been changed and the burden put on defendant, have been cases where the burden was changed by the statute, or the facts referred to in the exception or proviso related to the' *705defendant .personally, or were peculiarly within bis knowledge.

Tbis was true in State v. Goulden, supra,, as to tbe proviso in indictments for bigamy; also in indictments for selling-liquor without license, in criminal trespass on land,.etc., etc.

Tbe principle, we tbink, should not be extended or applied except in cases of like kind and based on reasons of like necessity.

As said by Ruffin, J., in State v. Wilbourne, supra :

“The general-rule-most undoubtedly is that tbe truth of every averment, whether it be affirmative or negative, which is necessary to constitute the offense charged, must be established by the prosecutor. The rule itself is Lift another form of stating the proposition that every .man charged with a criminal violation of the law is presumed to be innocent until shown to be guilty, and it is founded, it is said, upon principles of natural justice; and so forcibly has it commended itself by its wisdom and humanity to the consideration of this Court, that it has never felt willing, whatever circumstances of difficulty might attend any given case, to disregard it.”

We hold, therefore, that the Judge erred in putting the burden of proving the facts of the first proviso on the defendant.

Defendant further excepted because the Judge below admitted evidence as to the general character of the woman for virtue.

In criminal prosecutions it is always open to defendant to offer evidence as to his character at the time of the alleged offense and have the same considered as substantive testimony iñ his favor. State v. Johnson, 60 N. C., 151.

And, under certain circumstances, the character of other persons is relevant in like manner. ' This is generally true in prosecutions for criminal, offenses against females, where, *706from tbe nature of tbe prosecution, tbe cbaracter of tbe woman is necessarily and directly involved in tbe issue.

It is so in seduction and in indictments for rape or for assault with intent to commit rape. State v. Daniel, 87 N. C., 507.

And it is so in abduction, when, as bere, tbe cbaracter of tbe woman is, by express terms of tbe statute, directly in question. Am. and Eng. Ency., vol. 1, p. 181, and note.

It will be observed that in States wbieli bold tbe contrary, on indictments. for abduction, the decisions are put ón tbo ground that tbe crime, by tbeir statutes, in no way depends on tbe cbaracter of tbe person abducted. People v. Demousset, 71 Cal., 611.

His Honor was correct, therefore, in admitting tbe testimony as relevant to tbe inquiry.

Eor tbe error in tbe charge as to tbe burden of proof, the defendant is entitled to a new trial, and it is so ordered.

New Trial.

Clare, O. J.,

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, *708 93 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.