HigqiNS, J.
The defendant was indicted under Section 14-43 of the General Statutes of North Carolina, as follows:
"Abduction of married ivomen.
— If any male person shall abduct or elope with the wife of another, he shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year nor more than ten years: Provided, that the woman, since her marriage, has been an innocent and virtuous woman: Provided further, that no conviction shall be had upon the unsupported testimony of any such married woman.”
The indictment charged elopement, not abduction. Defendant’s counsel contend the court should have sustained the motion for judgment as of nonsuit for the reason that Estelle Dunn at the time of the elopement was not an innocent and virtuous woman, for that she had admitted that on Tuesday, Thursday, and Friday before leaving on Sunday she had had sexual intercourse with the defendant because as she said, “she wanted to.” The elopement was first planned on Saturday and the actual leaving took place on Sunday night. However, for more than a year the defendant had been professing his love for Mrs. Dunn. He seemed to have gained a welcome to the home by furnishing liquor to the husband and making love to the wife. The Dunn’s spent the year 1951 on Temple’s farm and made a crop there. The evidence showed that Temple was
frequently in and about the home. The last of December, 1951, or the first of January, 1952, the Dunn’s moved away from the Temple farm and moved to the Johnson place. In November of 1952 the defendant spent approximately two weeks in the Dunn home. During that time the son of 15 became so concerned about what was going on that he went for the deputy sheriff and had the defendant arrested.
For approximately one month, 20 March to 20 April, the defendant had again lived in the Dunn home. According to the wife’s story he had asked her to marry him about a week before they left. The proposal of marriage was before the first act of intercourse.
The indictment charges that at the time of the commission of the offense the wife was an innocent and virtuous woman. The law requires proof of that fact before a conviction can be had. Mrs. Dunn testified that even as to the defendant she had retained her innocence and virtue through more than 15 months of professions of love and until after he had asked her to marry him. It is not surprising, therefore, that this conduct led to elopement. If innocence and virtue existed at the beginning of the acts on the part of the defendant which in sequence led to the elopement, the requirement of the statute is fulfilled. In the case of
S. v. Hopper,
186 N.C. 405, 413, 119 S.E. 769, this Court said:
“The statute was made to protect the home against the lust and passion of evil men, who subtly, slyly and cunningly would creep into 'the family circle and poison its fountain source — the woman in the home. Can a man, through fraud, persuasion or deceit, go into a home and seduce the wife, who up to that time was an innocent and virtuous woman, and then abduct or elope with her, and, after having despoiled her- — -‘despoiled of innocence, of faith, of bliss’ — claim she was not innocent and virtuous? We do not think he could thus escape the wrong done.
“It is a maxim of law, recognized and established, that
nullus corru-modum capere potest de injuria sua propria
(no one can obtain an advantage by his own wrong). Broom’s Legal Maxim’s, (8th Ed.), p. 279.
“In
Carpenter v. The People,
8 Barbour’s Supreme Court Reports (N.Y.), p. 603, . . . the Court, in passing upon the meaning of ‘an unmarried female of previous chaste character,’ said: ‘We think the words referred to do mean actual personal virtue — that the female must be actually chaste and pure in conduct and principle up to the time of the commission of the offense. Not that this must be the case up to the moment of taking her away for the purpose mentioned, but that it must be so up to the commencement of the acts of the party accused- — done with the purpose indicated, and which result in such taking away. The process of inveigling and enticing may be the work of time, and when commenced, the female must be of chaste character in the sense above defined.’ ”
In the
Hopper case
the first act of intercourse took place more than three months before the actual elopement.'
While the motion for judgment as of nonsuit was properly overruled, nevertheless the case must go back for a new trial because of error committed in the charge, the objection to which is raised by defendant’s exception No. 57. The court charged:
“So, in this caite it is necessary for the State of North Carolina to satisfy you from the evidence, and beyond a reasonable doubt, that the defendant Vernon Temple abducted and eloped with the wife of another; (2) That at the time, or some time prior to the elopement, the married woman was a chaste and pure, or innocent and virtuous woman; (3) That there shall be supporting testimony as to the statements of Estelle Dunn, about which the Court has already instructed you; that is, that there is supporting testimony, but that the weight of that testimony is entirely within the discretion of you members of the jury; that is, the weight that you give to that testimony.”
The court charged: “It is necessary for the State ... to satisfy you from the evidence and beyond a reasonable doubt . . . (2) That at the time
or at some time prior to the elopement
the married woman was a chaste and pure, or innocent and virtuous woman.”
The charge, as given, lifts part of the burden the statute placed ppon the State. The statute says: “Provided, that the woman since her marriage has been an innocent and virtuous woman.” The charge, as given, permitted the State to carry the burden imposed by showing that the woman,
at some time prior to elopement
was an innocent and virtuous woman. Every woman is innocent and virtuous
at some time.
The battle line of the case was whether the wife,
at the time of elopement
(as herein-before defined) was an innocent and virtuous woman as contemplated by the first proviso in the Act. The charge as given was equivalent to striking out this proviso. The error, therefore, was prejudicial.
Some serious questions arise on the record with respect to the admissibility of evidence. Witnesses were permitted to testify to hearsay statements of a prejudicial nature if made in the presence of the defendant, regardless of whether the statements were of such character as might be deemed to require an answer on the part of the defendant or that his failure to answer might lead to an inference of guilt or guilty knowledge. To make competent the statement of others, more must appear than the mere fact the statements were made in the presence of the defendant. With respect to the admissibility of this type of evidence, the correct rule is stated by former
Chief Justice Stacy
in the case of
S. v. Wilson,
205 N.C. 376, 171 S.E. 338, from which we quote:
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HigqiNS, J.
The defendant was indicted under Section 14-43 of the General Statutes of North Carolina, as follows:
"Abduction of married ivomen.
— If any male person shall abduct or elope with the wife of another, he shall be guilty of a felony, and upon conviction shall be imprisoned not less than one year nor more than ten years: Provided, that the woman, since her marriage, has been an innocent and virtuous woman: Provided further, that no conviction shall be had upon the unsupported testimony of any such married woman.”
The indictment charged elopement, not abduction. Defendant’s counsel contend the court should have sustained the motion for judgment as of nonsuit for the reason that Estelle Dunn at the time of the elopement was not an innocent and virtuous woman, for that she had admitted that on Tuesday, Thursday, and Friday before leaving on Sunday she had had sexual intercourse with the defendant because as she said, “she wanted to.” The elopement was first planned on Saturday and the actual leaving took place on Sunday night. However, for more than a year the defendant had been professing his love for Mrs. Dunn. He seemed to have gained a welcome to the home by furnishing liquor to the husband and making love to the wife. The Dunn’s spent the year 1951 on Temple’s farm and made a crop there. The evidence showed that Temple was
frequently in and about the home. The last of December, 1951, or the first of January, 1952, the Dunn’s moved away from the Temple farm and moved to the Johnson place. In November of 1952 the defendant spent approximately two weeks in the Dunn home. During that time the son of 15 became so concerned about what was going on that he went for the deputy sheriff and had the defendant arrested.
For approximately one month, 20 March to 20 April, the defendant had again lived in the Dunn home. According to the wife’s story he had asked her to marry him about a week before they left. The proposal of marriage was before the first act of intercourse.
The indictment charges that at the time of the commission of the offense the wife was an innocent and virtuous woman. The law requires proof of that fact before a conviction can be had. Mrs. Dunn testified that even as to the defendant she had retained her innocence and virtue through more than 15 months of professions of love and until after he had asked her to marry him. It is not surprising, therefore, that this conduct led to elopement. If innocence and virtue existed at the beginning of the acts on the part of the defendant which in sequence led to the elopement, the requirement of the statute is fulfilled. In the case of
S. v. Hopper,
186 N.C. 405, 413, 119 S.E. 769, this Court said:
“The statute was made to protect the home against the lust and passion of evil men, who subtly, slyly and cunningly would creep into 'the family circle and poison its fountain source — the woman in the home. Can a man, through fraud, persuasion or deceit, go into a home and seduce the wife, who up to that time was an innocent and virtuous woman, and then abduct or elope with her, and, after having despoiled her- — -‘despoiled of innocence, of faith, of bliss’ — claim she was not innocent and virtuous? We do not think he could thus escape the wrong done.
“It is a maxim of law, recognized and established, that
nullus corru-modum capere potest de injuria sua propria
(no one can obtain an advantage by his own wrong). Broom’s Legal Maxim’s, (8th Ed.), p. 279.
“In
Carpenter v. The People,
8 Barbour’s Supreme Court Reports (N.Y.), p. 603, . . . the Court, in passing upon the meaning of ‘an unmarried female of previous chaste character,’ said: ‘We think the words referred to do mean actual personal virtue — that the female must be actually chaste and pure in conduct and principle up to the time of the commission of the offense. Not that this must be the case up to the moment of taking her away for the purpose mentioned, but that it must be so up to the commencement of the acts of the party accused- — done with the purpose indicated, and which result in such taking away. The process of inveigling and enticing may be the work of time, and when commenced, the female must be of chaste character in the sense above defined.’ ”
In the
Hopper case
the first act of intercourse took place more than three months before the actual elopement.'
While the motion for judgment as of nonsuit was properly overruled, nevertheless the case must go back for a new trial because of error committed in the charge, the objection to which is raised by defendant’s exception No. 57. The court charged:
“So, in this caite it is necessary for the State of North Carolina to satisfy you from the evidence, and beyond a reasonable doubt, that the defendant Vernon Temple abducted and eloped with the wife of another; (2) That at the time, or some time prior to the elopement, the married woman was a chaste and pure, or innocent and virtuous woman; (3) That there shall be supporting testimony as to the statements of Estelle Dunn, about which the Court has already instructed you; that is, that there is supporting testimony, but that the weight of that testimony is entirely within the discretion of you members of the jury; that is, the weight that you give to that testimony.”
The court charged: “It is necessary for the State ... to satisfy you from the evidence and beyond a reasonable doubt . . . (2) That at the time
or at some time prior to the elopement
the married woman was a chaste and pure, or innocent and virtuous woman.”
The charge, as given, lifts part of the burden the statute placed ppon the State. The statute says: “Provided, that the woman since her marriage has been an innocent and virtuous woman.” The charge, as given, permitted the State to carry the burden imposed by showing that the woman,
at some time prior to elopement
was an innocent and virtuous woman. Every woman is innocent and virtuous
at some time.
The battle line of the case was whether the wife,
at the time of elopement
(as herein-before defined) was an innocent and virtuous woman as contemplated by the first proviso in the Act. The charge as given was equivalent to striking out this proviso. The error, therefore, was prejudicial.
Some serious questions arise on the record with respect to the admissibility of evidence. Witnesses were permitted to testify to hearsay statements of a prejudicial nature if made in the presence of the defendant, regardless of whether the statements were of such character as might be deemed to require an answer on the part of the defendant or that his failure to answer might lead to an inference of guilt or guilty knowledge. To make competent the statement of others, more must appear than the mere fact the statements were made in the presence of the defendant. With respect to the admissibility of this type of evidence, the correct rule is stated by former
Chief Justice Stacy
in the case of
S. v. Wilson,
205 N.C. 376, 171 S.E. 338, from which we quote:
“When a statement is made, either to a person or within his hearing, implicating him in the commission of a crime, to which he makes no reply,
the natural inference is that the imputation is perhaps well founded, or he would have repelled it.
S. v. Suggs,
89 N.C. 527. But the occasion must be such as to call for a reply. ‘It is not sufficient that the statement was made in the presence of the defendant against whom it is sought to be used, even though he remained silent; but it is further necessary that the circumstances should have been such as to call for a denial on his part, and to afford him an opportunity to make it.’ 16 C. J., 659.
“Silence alone, in the face or hearing of an accusation, is not what makes it evidence of probative value, but the occasion, colored by the conduct of the accused or some circumstance in connection with the charge, is what gives the statement evidentiary weight.
S. v. Burton,
94 N.C. 947;
S. v. Bowman,
80 N.C. 432. ‘To make the statements of others evidence against one on the ground of his implied admission of their truth by silent acquiescence, they must be made on an occasion when a reply from him might be
properly expected.
But where the occasion'is such that a person is not called upon or expected to speak, no statements made in his presence can be used against him on the ground of his presumed assent from his silence.’
Ashe, J.,
in
Guy v. Manuel,
89 N.C. 83.
“Due to the manifold temperaments of people and their varying conceptions of the fitness of things, the character of evidence we are now considering is so liable to misrepresentation and abuse that the authorities uniformly consider it as evidence to be received with great caution and, except under well recognized conditions, hold it to be inadmissible altogether. Hence, unless the party at the time was afforded a fair opportunity to speak, or the statements were made under circumstances and by such a person as naturally called for a reply, the evidence is not admissible at all.
S. v. Jackson,
150 N.C. 831, 65 S.E. 376. ‘The silence of the accused may spring from such a variety of motives, some of which may be consistent with innocence, that silence alone is very slight evidence of guilt; and, aside from the inference which may arise from the attendant circumstances, should be received with caution as proof of guilt.’ Underhill Crim. Ev. (3rd Ed.), sec. 209. It is readily conceded that ‘mere shadows of confessions,’ which arise from silence in the face of accusations, are not to be received in evidence unless they amount to admissions by acquiescence.
S. v. Butler,
185 N.C. 625, 115 S.E. 889.
Qui tacet non utique fatetur, seel tamen verum est ewm non negare.
‘He who is silent does not indeed confess, but yet it is true that he does not deny.’ ”
We
refrain from discussing further the exceptions to the admissibility of evidence on the ground that the questions presented by them may not arise on another trial.
On account of the prejudicial error in the charge, the case must go back to the Superior Court of Johnston County for a
New trial.