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subsequent clause; either in tbe same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment, nor is proof required to be made in the first instance on the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 [702]*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.
[703]*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.
[704]*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.”
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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 [702]*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.
[703]*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.
[704]*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' [705]*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, [706]*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.