State v. . Brewington , 212 N.C. 244 ( 1937 )

The defendant was convicted upon a bill of indictment charging a violation of C. S., 4339, which reads: "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's Prison not exceeding the term of five years: Provided, the unsupported testimony of the woman shall not be sufficient to convict. . . . "

When the State had produced its evidence and rested its case, the defendant moved to dismiss the action and for judgment of nonsuit (C. S., 4643), and the court's refusal to allow the motion is the basis of an exceptive assignment of error.

The constituent elements of the offense against which the statute inveighs, and which must be proven beyond a reasonable doubt, are: (1) Seduction, (2) promise of marriage, (3) innocence and virtue of the prosecutrix, and, in addition, the statute contains the proviso that "the unsupported testimony of the woman shall not be sufficient to convict." This proviso requires evidence of facts and circumstances independent of the testimony of the prosecutrix tending to establish each of the constituent elements of the crime. S. v. Forbes, 210 N.C. 567; S. v.Patrick, 204 N.C. 299.

It may be conceded that there is in this case supporting evidence of all the constituent elements of the offense except that of the innocence and virtue of the prosecutrix. The only evidence offered to establish such innocence and virtue is the testimony of the witness R. B. Radford, as follows:

"Q. Do you know the girl (prosecutrix)?

"A. I know her when I see her.

"Q. Do you know her reputation in the community, whether good or bad?

"A. Nothing against her, or for her, that I know of. I just know her when I see her, that's all."

While it has been repeatedly held by this Court that evidence of the good character or reputation of the prosecutrix prior to the alleged seduction is sufficient to constitute supporting testimony within the meaning and requirement of the statute, S. v. Horton, 100 N.C. 443; S. v.Malonee, 154 N.C. 200; S. v. Moody, 172 N.C. 967; S. v. Patrick, supra, we think that the testimony of the witness Radford fails to support the testimony of the prosecutrix tending to establish her good character or reputation, or innocence and virtue. The positive testimony of the witness is "I just know her when I see her, that's all." The rest of his testimony is negative, and has not probative force.

Because the testimony of the prosecutrix as to her innocence and virtue, a constituent element of the offense, was unsupported, the defendant's motion for judgment of nonsuit should have been allowed.

The judgment below is

Reversed.