WalKER, J.,
after stating tbe case: The evidence in this case is not only repulsive, but filthy, in some of its parts, but we are to determine upon the legal guilt of the defendant or, in other words and speaking more accurately, whether he has been legally tried below. "We do not think that he has been, and will proceed now to state our reasons for so thinking. The instruction above set forth contains a proposition of law which cannot be sustained and it no doubt caused the defendant’s conviction. ¥e know of no case in this State which decides that a woman would be innocent and virtuous under the facts and circumstances detailed by the judge therein! If a woman commits adultery with a man simply because she is solicited to do so, even upon the promise of marriage, she is to be pitied, but is not “innocent and virtuous” within the meaning of the statute upon which this prosecution is based. If she yielded to temptation solely because of the promise and not to gratify her lustful passions, she is still an adulteress, and cannot be said, in the language of this Court, to be a woman who never had had actual sexual intercourse with a man. She may be virtuous, but not innocent, within the meaning of the statute, as is shown so clearly by
Justice Davis
in
S. v. Ferguson, 107
N. C., 841. It is said in that case, without quoting literally, that the woman must be virtuous, that is, pure and chaste, as well as innocent. The purpose of this statute is to protect innocent and virtuous women against wicked and designing men, who know that one of the most potent of all seductive arts is to win love and confidence by promising love and marriage. In section 1113 of The Code the word “innocent” is used, which
Justice Ruffin
defines, in
S. v. McDaniel,
84 N. C., 805, as meaning “a pure-woman — one whose character, to use the language of the preamble of the statute, is unsullied.” In
S. v. Davis,
92 N. C., 764, “an innocent woman,” within the meaning of that section, is defined to be “one who had never had actual illicit intercourse with a man,” and mere lasciviousness, and the permission of liberties by men, are not contemplated by the statute; and this definition of the words, “an innocent woman,” has been followed in
S. v. Norton,
100 N. C., 447, in construing the word “innocent” in the statute now under review. But the woman must not only be “innocent” but “virtuous.” What force, if any, does the word “virtuous” impart to the act ? In
S. v. Grigg,
104 N. C., 882, it is said, citing
S. v. Aldridge,
86 N. C., 680, that a woman, who at some time in her life has made a “slip in her virtue” is entitled to the protection of section 1113 of The Code, if she is chaste and virtuous” when the slanderous words are uttered. There is a manifest reason why
the words “an innocent woman,” in section 1118 of The Code, and “innocent and unprotected woman” in section 3763, should be construed to mean innocent of illicit sexual intercourse, as affecting her reputation when the slanderous words are spoken, for the purpose of these sections is to protect women, who, however imprudent they may have been in other respects, have not so far “stooped to folly” as to surrender their chastity and become incontinent, or who have regained their characters for innocence and chastity if a “slip has been made,” from “the wanton and malicious slander” of persons who may attempt to destroy their reputations and blast and ruin their good names. But the act of 1885, recognizing the frailty of man as well as woman, superadds to the word “innocent” the word “virtuous,” and before it will condemn and punish the man, who may be seducible as well as seductive, requires that it shall be made to appear that the woman was herself “innocent and virtuous,” and that the seduction was compassed by winning her confidence and love under the false and alluring means of a promise of marriage; but, if she willingly surrenders her chastity, prompted by her own lustful passions, or any other motive than that produced by a promise of marriage, she is in
pari delicto,
and there is no crime under the statute. She must not only be innocent, but virtuous, that is, chaste and pure, and if such a woman yields under the promise of marriage to the “studied, sly, ensnaring art . . . dissembling smooth” of the seducer and is betrayed, she deserves sympathy and charity; and he not only deserves the “curse” of all who love honor and virtue, but the severest penalties of the law. The woman, however, must be “virtuous” as well as “innocent,” and this implies something more in her conduct than mere innocence of illicit sexual intercourse. If she willingly submitted to his embraces, the mere promise of marriage would not make it seduction. 33 Mich., 117. And her evidence must be supported. No such proviso is to be found in sections 1113 and 3763. For illustration, there is no evidence that Poti-pher’s wife ever had illicit sexual intercourse with anyone, and yet the idea of a “virtuous woman” would hardly be suggested by her name.
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WalKER, J.,
after stating tbe case: The evidence in this case is not only repulsive, but filthy, in some of its parts, but we are to determine upon the legal guilt of the defendant or, in other words and speaking more accurately, whether he has been legally tried below. "We do not think that he has been, and will proceed now to state our reasons for so thinking. The instruction above set forth contains a proposition of law which cannot be sustained and it no doubt caused the defendant’s conviction. ¥e know of no case in this State which decides that a woman would be innocent and virtuous under the facts and circumstances detailed by the judge therein! If a woman commits adultery with a man simply because she is solicited to do so, even upon the promise of marriage, she is to be pitied, but is not “innocent and virtuous” within the meaning of the statute upon which this prosecution is based. If she yielded to temptation solely because of the promise and not to gratify her lustful passions, she is still an adulteress, and cannot be said, in the language of this Court, to be a woman who never had had actual sexual intercourse with a man. She may be virtuous, but not innocent, within the meaning of the statute, as is shown so clearly by
Justice Davis
in
S. v. Ferguson, 107
N. C., 841. It is said in that case, without quoting literally, that the woman must be virtuous, that is, pure and chaste, as well as innocent. The purpose of this statute is to protect innocent and virtuous women against wicked and designing men, who know that one of the most potent of all seductive arts is to win love and confidence by promising love and marriage. In section 1113 of The Code the word “innocent” is used, which
Justice Ruffin
defines, in
S. v. McDaniel,
84 N. C., 805, as meaning “a pure-woman — one whose character, to use the language of the preamble of the statute, is unsullied.” In
S. v. Davis,
92 N. C., 764, “an innocent woman,” within the meaning of that section, is defined to be “one who had never had actual illicit intercourse with a man,” and mere lasciviousness, and the permission of liberties by men, are not contemplated by the statute; and this definition of the words, “an innocent woman,” has been followed in
S. v. Norton,
100 N. C., 447, in construing the word “innocent” in the statute now under review. But the woman must not only be “innocent” but “virtuous.” What force, if any, does the word “virtuous” impart to the act ? In
S. v. Grigg,
104 N. C., 882, it is said, citing
S. v. Aldridge,
86 N. C., 680, that a woman, who at some time in her life has made a “slip in her virtue” is entitled to the protection of section 1113 of The Code, if she is chaste and virtuous” when the slanderous words are uttered. There is a manifest reason why
the words “an innocent woman,” in section 1118 of The Code, and “innocent and unprotected woman” in section 3763, should be construed to mean innocent of illicit sexual intercourse, as affecting her reputation when the slanderous words are spoken, for the purpose of these sections is to protect women, who, however imprudent they may have been in other respects, have not so far “stooped to folly” as to surrender their chastity and become incontinent, or who have regained their characters for innocence and chastity if a “slip has been made,” from “the wanton and malicious slander” of persons who may attempt to destroy their reputations and blast and ruin their good names. But the act of 1885, recognizing the frailty of man as well as woman, superadds to the word “innocent” the word “virtuous,” and before it will condemn and punish the man, who may be seducible as well as seductive, requires that it shall be made to appear that the woman was herself “innocent and virtuous,” and that the seduction was compassed by winning her confidence and love under the false and alluring means of a promise of marriage; but, if she willingly surrenders her chastity, prompted by her own lustful passions, or any other motive than that produced by a promise of marriage, she is in
pari delicto,
and there is no crime under the statute. She must not only be innocent, but virtuous, that is, chaste and pure, and if such a woman yields under the promise of marriage to the “studied, sly, ensnaring art . . . dissembling smooth” of the seducer and is betrayed, she deserves sympathy and charity; and he not only deserves the “curse” of all who love honor and virtue, but the severest penalties of the law. The woman, however, must be “virtuous” as well as “innocent,” and this implies something more in her conduct than mere innocence of illicit sexual intercourse. If she willingly submitted to his embraces, the mere promise of marriage would not make it seduction. 33 Mich., 117. And her evidence must be supported. No such proviso is to be found in sections 1113 and 3763. For illustration, there is no evidence that Poti-pher’s wife ever had illicit sexual intercourse with anyone, and yet the idea of a “virtuous woman” would hardly be suggested by her name.
This definition of the words has been the settled and fully accepted one ever since the decision in
S. v. Ferguson, supra,
and has been adopted, and followed, in several more recent eases.
S. v. Horton,
100 N. C., 443;
S. v. Crowell,
116 N. C., 1052;
S. v. Whitley,
141 N. C., 826;
S. v. Ring,
142 N. C., 596;
S. v. Kincaid, ibid,
657;
S. v. Raynor,
145 N. C., 472;
S. v. Malonee,
154 N. C., 200;
S. v. Cook,
176 N. C., 730;
S. v. Pace,
159 N. C., 462;
S. v. Cline,
170 N. C., 751;
S. v. Moody,
172 N. C., 967;
S. v. Fulcher,
176 N. C., 724. If we are still to follow the opinion of
Justice Davis,
which has always guided us in cases such as this one, the charge of the Court cannot be sustained.
S. v. Crowell,
116 N. C., 1052 (opinion by the present
Chief Justice),
for he told the jury that, notwith
standing that the prosecutrix (Darrie Ball) had committed adultery with Thomas Ball (by whom she had a child) before they were married, the jury should find that she was both an innocent and a virtuous woman. And the judge committed the same error in a more pronounced way, if anything, when he refused the clear-cut requests of the defendant for instruction as to this feature of the case. The first prayer for instructions omitted the element of seduction and defendant was entitled to have the jury charged as requested, because the defendant was not concluded by the statement of the prosecutrix that the illicit intercourse was induced by his promises of marriage. It was for the jury to say whether it was merely to gratify her lust, or was induced by his promise, and there was evidence in this case, and, too, some strong evidence, that she was a very lustful woman, and enough to justify the jury in finding that she did not require a promise to overcome the longing of her lewd nature or her lascivious desires, or even yearnings. But we may pause here to state that, on the next trial, it will be proper for the court to instruct the jury that if the prosecutrix had committed adultery with the man, who afterwards became her husband, even though it was often repeated before marriage, yet if after she thus fell, she married her lover and was always faithful to him, and ever, after the first act of adultery with him, was innocent and virtuous, that is, had not had sexual intercourse with any man, until the defendant seduced her under promise of marriage, if he did such a thing, then that she would be an innocent woman, and if she was also chaste and pure in the sense above defined, she also would be a virtuous woman within the meaning of the statute. An adulteress may reform and become innocent and even virtuous, and if this woman has done so, the statute protects her just as much as if she had never fallen, but had always walked in the straight and narrow way of spotless innocence, virtue, and chastity, not even permitting undue familiarity from any man, and especially the debaucher. This was clearly decided in
S. v. Ferguson, supra,
and some of the other cases above cited have carefully followed it.
The statute was passed to guard, and protect, the innocent and virtuous woman, and not those who seek only to gratify their own lustful desires and have no proper regard for the sacredness and purity of the marriage promise, and do not even wait for it, before yielding their persons to the embraces of evil minded men. In such a case, the woman is considered to be as bad as he is, and beyond the pale of the law’s protection under this statute.
We have not overlooked, the fact of the disparity in the ages of this woman and the defendant, she being fourteen years his senior, and that he contends, and offered evidence to prove, that he was the seduced, and not the seducer. She was, by her own evidence, of a most lascivious dis
position, and seemed to bave lured tbis young man from tbe patb of ■virtue by constantly tempting bim, if tbe testimony be true, and even going to tbe length of saying, unblusbingly and to ber open sbame, that in tbe perpetration of tbe act itself, “she preferred tbe woods to tbe porch.”
There was error in tbe respects indicated, for which another trial is necessary.
New trial.