#### STATE v. THOMAS K. MEARES.

(Filed 19 October, 1921.)

1. Seduction — Promise of Marriage — Supporting Evidence — Statutes.

Evidence tbat the defendant, indicted for seduction under the promise of marriage, was engaged to the prosecutrix at the time of the alleged offense, and so held himself out and as such had gone with her, is sufficient supporting evidence of the testimony of the prosecutrix that he had seduced her under promise of marriage to be submitted to the jury.

*8102. Same — Inferences for Jury.

The acts and conduct of the defendant, tried under the statute for seducing the prosecutrix under promise of marriage, may be sufficient for .the jury to infer the promise independently of the testimony of the prose-cutrix thereto, and are held, sufficient under the whole evidence in this-case.

3. Same — Instructions.

Where, under the evidence, the court has instructed the jury that the State must show the guilt of the defendant, tried for seduction under a breach of promise of marriage, beyond a reasonable doubt, and properly upon the other elements of the offense, a further charge, upon the evidence, that the promise must be either express or implied, is not erroneous, taken in connection with his charge that the promise must have been the sole inducement to the act without “other motive.”

4. Trials — Remarks of Counsel — Seduction—Improper Remarks — Appeal and Error.

Where an attorney has been arguing to the jury for the conviction of the defendant on trial for seduction under a'breach of promise of marriage, in conformity with the evidence in the case, he is within his rights in generalizing upon the enormity of the offense, and the necessity of protecting the virtue of our women from designs and practices of this character upon them.

Walker and Stacy, JJ., dissenting.

Appeal by defendant from Kerr, J., at April Term, 1921, of BruNS-wiok.

■ This was an indictment for the seduction of an innocent and virtuous woman, and from the verdict and judgment the defendant appealed.

Attorney-General Maiming and, Assistant Attorney-General Nash for the State.

John D. BellcCmy & Sons, G. Ed. Taylor, and Lorenzo Medlin for defendant.

ClaeK, C. J.

This appeal presents, we think, but two exceptions that require consideration.

The court, after instructing the jury fully and. correctly as to the nature of the offense with which the defendant was charged, and explaining to the jury the bill of indictment and instructed them as to the contentions of both the State and the defendant, and that before the defendant could be convicted the State must prove beyond a reasonable doubt that: (1) The prosecuting witness was seduced by the defendant; and (2) that at the time of her seduction she was then and before that time had been an innocent and virtuous woman, adding “that the State must also prove beyond a reasonable doubt that the seduction by the defendant was under a promise of marriage, either express or implied by the *811acts and conduct of tbe defendant.” And said further, “And if tbe State bad failed to satisfy tbe jury beyond a reasonable doubt of either of these essential facts, then tbe jury should acquit tbe defendant.”

Tbe court also told tbe jury that they could not convict tbe .defendant upon tbe unsupported testimony of tbe prosecutrix, and further charged tbe jury: “And so, gentlemen of tbe jury, are you satisfied from tbe evidence that tbe defendant seduced tbe prosecutrix, and at tbe time she was an innocent and virtuous woman,' and that tbe seduction was induced by a promise upon tbe part of tbe defendant to marry her, either expressed to her or implied by bis acts, and bis relationship to her ? These facts, gentlemen of tbe jury, are to be. determined by you from tbe evidence, and if you are so satisfied, then you should find him guilty. If you are not so satisfied, gentlemen of tbe jury, then you should return tbe verdict of not guilty. If tbe prosecuting witness willingly surrendered her chastity, prompted by her own lustful passion, or by any other motive than that produced by a promise of marriage, then tbe court charges you that tbe defendant would not be guilty, and you should acquit him.”

Tbe court further charged tbe jury: “Tbe burden of proof is upon tbe State of North Carolina to satisfy you beyond a reasonable doubt of tbe guilt of the defendant, and it must satisfy you of tbe criminal act, and it must satisfy you beyond a reasonable doubt that tbe prosecuting witness, Etta Beck, was seduced by the defendant; that at tbe time of her seduction she was an innocent and virtuous woman, and that tbe seduction was made under a promise of marriage, and unless tbe State has so satisfied you, you should return a verdict of not guilty. If tbe State has so satisfied you beyond a reasonable doubt of tbe three essential elements which,, as I have explained to you, constitute tbe crime, then you should return a verdict of guilty.”

Tbe jury found that there was no reasonable doubt that tbe defendant was guilty. Tbe charge was very full and complete and carefully expressed. Tbe defendant excepts to tbe paragraphs above set out in quotation, because tbe court charged that tbe promise must be either “expressed to her or .implied by bis acts and bis relationship to her.” But it will be seen by reading all tbe charge bearing upon that point that tbe court throughout instructed tbe jury that they could not convict unless they were satisfied beyond a doubt of tbe three essential matters: (1) that tbe defendant seduced Etta Beck; (2) that she was and bad been an innocent and virtuous woman; and that (3) tbe seduction was procured upon a promise by tbe defendant to marry her, but that “if tbe prosecuting witness willingly surrendered her chastity, prompted by her own lustful passion, or for any other motive than that produced by promise of marriage, then tbe court charges you that tbe defendant would be not guilty, and you should acquit him.”

*812The evidence on the part of the State, if believed by the jury, was amply sufficient to satisfy them beyond a reasonable doubt that the seduction was procured by such promise of marriage. The prosecuting witness.testified unequivocally to the promise of marriage, and that it was the sole inducement which procured her seduction; that he had been going with her since she was 16 years old, and that they were engaged then; that in 1918 he joined the Navy, and while in service of the Government she received letters from him every week; that on his return he came to see her and renewed his promise of marriage, and that she told her mother that they were engaged, and her mother and sister both testified that the defendant told them that he was engaged to marry the prose-cutrix. The court properly charged that they could not convict the defendant unless they believed the corroborating evidence. ■

The prosecuting witness also testified that when she discovered that she was to become a mother she told the defendant, who said that it would be all right; that he would marry Her the next week; this promise he put off from time to time, and finally left in October and went to 'Mullins, S. 0., but wrote her that he would meet her in the city of Wilmington at a time named, but did not do so; that while in South Carolina he wrote and asked her to destroy all his letters that she had received from him. It was also in evidence that while in Mullins he wrote to a witness in Wilmington, telling him to inform the prosecutrix that he was in ’Galveston, Texas, and not to let her know where he was. The evidence was very full and complete and its credibility was for the jury.

It will be seen that the court instructed the jury fully and completely that unless they were satisfied beyond a reasonable doubt that the sole inducement to the seduction was the promise of marriage, and “induced by no other motive,” to acquit. The words “promise, expressed or implied by the acts and conduct of the defendant,” which is the sole'ground of this exception, would be harmless as there was evidence, corroborated by the mother and sister, of the promise of marriage, but if it were otherwise, the language of the judge, taken with the repeated instruction that they must be satisfied beyond a reasonable doubt that the seduction was procured “by the inducement of a promise of marriage and no other motive,” could have no other meaning than that there was an expressed promise or such acts and conduct on the part of the defendant that was unequivocal and would satisfy the jury beyond a reasonable doubt that such acts and conduct was the full equivalent of an express promise, and not a mere inference which the prosecuting witness might draw. “Acts speak louder than words,” and the conduct of the defendant which might amount to an implied promise must have been such under the charge of the judge that it would convince the jury beyond a reasonable doubt that such promise was the sole inducement which procured the seduction. *813The jury were not misled by the charge of the judge, which was explicit that there must have been a “promise,” and that, whether expressed or implied by his acts, such promise was the sole inducement which caused the seduction.

In S. v. Ring, 142 N. C., 599, it was said by Walicer, J.: “It is not necessary to a conviction under this law that the State should show the defendant directly and expressly promised the prosecutrix to marry her if she would submit to his embraces. It is quite sufficient if the jury from the evidence can fairly infer that the seduction was accomplished by reason of the promise, giving to the defendant the benefit of any reasonable doubt.”

In S. v. Raynor, 145 N. C., 475, it is said, quoting S. v. Ring, supra: “Such conduct is the legal equivalent of an express promise to marry if she would submit to his lecherous solicitations, provided the jury found, as they did, that it had the effect of alluring her from the path of virtue.”

In S. v. Malonee, 154 N. C., 203, it is again said by Walker, J.: “We said in S. v. Ring, supra, that it is sufficient if the jury can fairly infer from the evidence that the seduction was accomplished by reason of the promise of marriage, giving to the defendant the benefit of any reasonable doubt, and that no set form of words is necessary to show the causal relation between the promise and the act of sexual intercourse.”

In S. v. Fulcher, 176 N. C., 727, it is said: “As to the seduction by reason of the promise, the defendant admitted the engagement to other witnesses, and his assiduous attentions to the girl at the time when she alleged they committed the act, which with other circumstances already related, tended to support her testimony that he had promised to marry her, and she was thereby persuaded, after hesitation, to yield to his wishes. The woman could not easily be supported in any other way, for the man is not apt to admit his own guilt, though there are witnesses of it. S. v. Pace, 159 N. C., 462; S. v. Whitley, 141 N. C., 823; S. v. Kincaid, 142 N. C., 657; S. v. Moody, 172 N. C., 967. It is said in Underhill on Or. Evidence, sec. 388: 'The conduct and relations of the parties after, as well as before, the date of the alleged seduction may be shown, such evidence being relevant to prove that consent was obtained by promise and inducements, and of what they consisted.’ This is cited with approval in S. v. Moody, 172 N. C., 971.”

In S. v. Cooke, 176 N. C., 735, it was said: “There was unqualified evidence of the promise of marriage, though in S. v. Ring, 142 N. C., 596, it was held that it was sufficient if this could be reasonably inferred from the evidence; there was evidence of the good character of the girl, which was held sufficient supporting testimony in S. v. Horton, 100 N. C., 448, and S. v. Malonee, 154 N. C., 202; there was evidence that she told her mother and father of the engagement and the conduct of the defend*814ant, which was held sufficient as supporting testimony in S. v. Moody, 172 N. C., 967, and numerous cases there cited by Walher, Jfrom this and other states. The testimony of the mother that the daughter told her of her engagement and of the conduct of the defendant was also held sufficient in S. v. Whitley, 141 N. C., 823, and S. v. Kincaid, 142 N. C., 657.”

In 24 R. C. L., p. 746, the law is thus summed up as to the promise of marriage: “In many States, though not in all, seduction is punishable as a crime only when accomplished under a promise of marriage. When such promise is a necessary, element of the crime, it need not be shown that the defendant directly and expressly promised the prosecutrix to marry her if she would submit to his embraces, and it is sufficient if the jury, under the evidence, can fairly infer that the seduction was accomplished by reason of the promise, giving to the defendant the benefit of any reasonable doubt. . But it must appear that the prosecutrix yielded her virtue in consequence of such promise, and not to gratify her curiosity or lustful passion.”

The learned judge charged exactly in accord with the law as stated in the above extract, and in our own cases above quoted.

One of the counsel for the prosecution in closing his speech to the jury said: “The time has come when the decent people in North Carolina should stand up and defend the virtue and integrity of the fireside and home against the vicious assaults of human vultures and wolves.” He wa's interrupted by one of the counsel for the defendant, who asked the court to order the counsel to desist. The court refused to stop counsel in his argument, who then said: “Regardless of what the counsel says, the Supreme Court has said, I propose to defend the womanhood of Brunswick County and the virtue of the prosecutrix in this case.” The court remarked that the counsel for the State was within his rights, and the defendant excepted.

We cannot see that the defendant was in anywise prejudiced by the statement of counsel for the prosecution. He was endeavoring to convince the jury that the defendant was guilty of the crime charged. In so arguing upon the evidence he was strictly within his rights, and in his generalization that those who committed such offenses were “human vultures and wolves,” he certainly was not doing any prejudice to the defendant that would compare with his argument that upon the facts the jury should be satisfied beyond a reasonable doubt that the defendant had committed that offense. It was to decide that question that the jury had been impaneled and that this trial was had.

It is only when counsel goes beyond the evidence in the case, and makes charges against the defendant which are not a reasonable and just inference from the evidence, that the Court will grant a new trail if the *815presiding judge does not stop counsel and instruct tbe jury to disregard wbat be said. S. v. Surles, 117 N. C., 724.

Tbe prosecution could and did claim tbat tbis case was an effort “on bebalf of tbe decent people of tbe State to stand up and defend tbe virtue and integrity of tbe fireside,” and tbe counsel was arguing tbat upon tbe evidence tbe defendant bad been guilty of tbat offense. Tbis is wbat tbe trial was to determine, and counsel bad tbe right to argue tbat tbe State bad done so, according to tbe evidence. It was not error, therefore, for tbe learned judge to bold tbat tbe counsel was witbin bis rights in stating tbat tbis offense was a most heinous one, and tbat tbe public was interested in its being punished. Tbis was a generalization, indeed a truism, to which every one must agree. Tbe statute makes it a felony. Tbis Court has 'said: “There is no crime more despicable than tbis. It is committed in secret, by lust and lying, by deception and tbe stronger taking advantage of tbe weaker.” S. v. Cooke, 176 N. C., 735. So far from tbe remark being prejudicial, it put tbe jury on guard as to tbe importance of tbe offense, and was tbe statement of a legal and moral truth.

Upon consideration of all tbe exceptions, we find

No error.

WalKER and Stacy, JJ., dissent.