#### STATE v. ERNEST DOSS.

(Filed 24 September, 1924.)

1. Seduction — Statutes—Instructions—Supporting Evidence.

Where there is supporting testimony of the woman in her statutory action for seduction, to wit, the carnal intercourse with an innocent and virtuous woman, induced by promise of marriage, an instruction which eliminates the necessary supporting evidence of the woman to only the element of the promise of marriage is reversible error. O. S., 4339.

2. Same — Questions fox» Jury — Statutes.

The weight and credibility of the evidence supporting that of the woman, upon the trial of seduction, under C. S., 4339, is for the jury, if it comes within the requirement of being legal evidence, however slight it may be.

Appeal by defendant from Allen, J., at March Term, 1924, of Lee.

This was an indictment against the defendant for seduction of Elizabeth Bryant, an innocent and virtuous woman, under promise of marriage. There was a verdict of guilty and judgment was rendered from which defendant appealed to the Supreme Court.

The only material exception and assignment of error will be considered in the opinion.

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

D. B. Teague and H. F. Seawell for defendant.

ClaeKsoN, J.

The defendant was indicted under C. S., 4339; which is as follows: “If any man shall seduce an innocent and virtuous woman under promise of marriage, he shall be guilty of a felony, and upon conviction shall be fined or imprisoned at the discretion of the court, and may be imprisoned in the State Prison not exceeding the term of five years: Provided, the unsupported testimony of the woman shall not be sufficient to convict; provided further, that marriage between the parties shall be a bar to further prosecution hereunder. But when such marriage is relied upon by the defendant, it shall operate as to the costs of the case as a plea of nolo contendere, and the defendant shall be required to pay all the costs of the action or be liable to imprisonment for nonpayment of the same.”

There are three elements in this crime: (1) The carnal intercourse; (2) With an innocent and virtuous woman; (3) Induced by promise of marriage.

*215Tbe statute, however, bas tbis proviso: "Provided, tbe unsupported testimony of tbe woman shall not be sufficient to convict.”

There are three essentials to a conviction. All tbe elements must be proved by supporting testimony. Tbe court below charged tbe jury (to which charge exception was taken and error assigned) as follows: “So it is necessary for you to understand tbis statute, which makes it a felony, that is, an offense punishable by imprisonment in tbe State’s Prison, to seduce a virtuous and innocent woman under a promise of marriage; tbe law is so careful about it that it goes further and says that tbe case is not made out unless tbe State produces and bas some supporting evidence as to tbe promise of marriage.”

Tbe vice complained of is that tbe charge of tbe court below expressly limited tbe necessity for testimony to support- that of tbe prosecutrix to one essential of tbe crime, namely, tbe promise of marriage, and impliedly states to tbe jury that as to tbe other two essentials of tbe crime tbe testimony of tbe prosecutrix need not be supported. Nowhere in tbe charge is tbis error corrected. Tbe maxim applies of "Casus omissus pro omisso habendus est. A case omitted is to be held as (intentionally) omitted.” Tray Lat. Max., 67.

In State v. Moody, 172 N. C., 968, it is said :

“There are three essential elements of tbis crime: First, tbe seduction; second, tbe innocence and virtuousness of tbe woman; third, tbe promise of marriage inducing consent of tbe woman to the sexual act. S. v. Pace, 159 N. C., 462; S. v. Cline, 170 N. C., 751. Tbe prosecutrix testified to tbe defendant’s promise of marriage; that she was persuaded by it to have sexual intercourse with him, and that she was a virtuous and innocent woman, never having committed tbe act with any other man.”

First, as to her virtue and innocence there was supporting testimony, as tbe State called witnesses who stated that tbe character of tbe prose-cutrix bas always been good prior to tbis occurrence. ¥e have held tbis to be sufficient as supporting testimony within tbe meaning of the statute. S. v. Mallonee, 154 N. C., 200; S. v. Horton, 100 N. C., 443; S. v. Cline, supra; S. v. Sharpe, 132 Mo., 171; S. v. Deitrick, 51 Iowa, 469; S. v. Bryan, 34 Kan., 72; Zabriskie v. State, 43 N. J. L., 644.

Second, tbe seduction was shown both by tbe testimony of tbe prose-cutrix and tbe admission of tbe defendant and by tbe circumstances otherwise appearing in tbe case.

Third, tbis brings us to a consideration of tbe main contention of tbe defendant’s counsel, that there is no supporting testimony as to tbe promise of marriage.

It must be borne in mind that we are not passing upon tbe weight or strength of tbe evidence in any of these instances, but only upon tbe *216question whether there is any testimony which is supporting in the sense of that word as used in the statute. We are of the opinion that there is, and however unconvincing or inconclusive it may be, it was for the jury to determine its weight. S. v. Ferguson, 107 N. C., 841.

For the reasons given, there must be a

New trial.