#### STATE v. EMMETT BRACKETT.

(Filed 30 October, 1940.)

1. Seduction § 1—

Tbe essential elements of the offense of seduction are the innocence and virtue of the prosecutrix, the promise of marriage, and intercourse' induced by such promise.

3. Seduction § 8—

Unqualified testimony that the character of prosecutrix was good at the time of the alleged seduction is sufficient supporting evidence upon the question of the innocence and virtue of prosecutrix.

3. Same—

Testimony of the mother of prosecutrix that defendant had asked her approval of their marriage, and subsequent to the birth of the child, had acknowledged paternity of the child and reiterated his intention to marry prosecutrix, is sufficient supporting evidence upon the question of the promise of marriage.

*3704. Same—

Evidence that defendant had ashed the approval of prosecutrix’ mother to their marriage, that he paid prosecutrix assiduous attention, and gave her a ring, a watch and a dress, is sufficient supporting evidence on the question of intercourse induced by promise of marriage.

5. Criminal Law § 51—

Impropriety in the argument of counsel is cured by correction by the court, and ordinarily the court may make such correction in the charge or at any time during the trial, immediate interference by the court being necessary only in case of gross impropriety.

•6. Seduction § 7—

In a prosecution for seduction the paternity of the child is in issue, and when the child has been introduced in evidence but not “exhibited” to the jury, and the defendant is in court and observable by the jury, although not' a witness in his own behalf, the resemblance of the child to defendant is some evidence of paternity, which may be considered by the jury.

7. Constitutional Law § 29—

The constitutional provision that a defendant shall not be compelled to testify against himself, Fifth Amendment to the Federal Constitution, does not preclude the prosecution from calling to the jury’s attention the physical aspect of defendant when relevant to the inquiry.

8. Seduction § 10—

In this prosecution for seduction, the court’s charge to the jury as to the character and requirements of evidence in support of the testimony of prosecutrix, *is held*without error.

9. Criminal Law § 53h—

The charge of the court will be construed contextually as a whole.

10. Criminal Law § 53c—

A charge that the burden of proving defendant guilty beyond a reasonable doubt does not require the State to prove defendant guilty beyond all doubt, or a vain or fanciful doubt, but only beyond a reasonable doubt, which is one based upon common sense and reason, and generated by insufficiency of proof, *is held*without error.

11. Constitutional Law § 32—

Defendant’s contention that he was subjected to cruel and unusual punishment in that the trial court sentenced him to the maximum prison term permitted by statute for the offense of seduction of which he was convicted, and in addition dictated a letter to the Parole Commissioner in which he requested that no clemency be extended defendant, and also directed the solicitor to institute prosecution against defendant for failure to support his illegitimate child, *is held*untenable, since the letter to the Parole Commissioner and the instructions to the solicitor are not parts of the sentence imposed.

Appeal by defendant from *Gwyn, J.,*at March Term, 1940, of Cleveland.

*371
      *Attorney-General McMullan and Assistant Attorneys-General Bruton and Patton for the State.*

*B. T. Palls for defendant, appellant.*

SoheNCk, J.

Tbe defendant was tried and convicted upon a bill of indictment charging tbe seduction of an innocent and virtuous woman under tbe promise of marriage, O. S., 4339, and from sentence of imprisonment in tbe State’s Prison for a term of five years appealed to tbe Supreme Court, assigning errors.

Tbe defendant’s first three exceptive assignments of error relate to tbe court’s refusal to allow motion for a nonsuit, C. S., 4643, upon tbe theory that tbe testimony of tbe prosecutrix as to some of tbe essential elements of tbe offense was unsupported.

Tbe essential elements of tbe offense are (1) tbe innocence and virtue of tbe prosecutrix, (2) tbe promise of marriage, and (3) intercourse-induced by such promise. *S. v. McDade,*208 N. C., 197.

As to tbe first element, tbe innocence and virtue of tbe prosecutrix,, at least two witnesses testified unqualifiedly that tbe prosecutrix was of good character at tbe time of tbe alleged seduction. This is sufficient, supporting evidence upon this element of tbe offense. *S. v. Doss,*188 N. C., 214; *S. v. Moody,*172 N. C., 967. As to tbe second essential element, tbe promise of marriage, tbe supporting evidence was plenary. Tbe mother of tbe prosecutrix testified that tbe defendant asked her approval of tbe marriage of himself and her daughter, and that subsequent to tbe birth of tbe child be acknowledged bis paternity thereof and reiterated bis intention to marry tbe prosecutrix. As to tbe .third essential element of tbe offense (intercourse induced by such promise,, tbe testimony of tbe prosecutrix is supported by tbe testimony of her mother as to statements made by tbe defendant and tbe actions of the-defendant, such as tbe assiduous attention paid tbe prosecutrix by the-defendant, accompanied by tbe giving to her of a ring, a watch and. a dress. These assignments cannot be sustained.

Tbe fourth exceptive assignment of error relates to a statement made-in tbe course of bis argument by counsel for tbe private prosecution, to which exception was preserved by counsel for defendant as follows : “Look at tbe defendant. This baby has black hair just like bis.” If it be conceded that tbe statement was improper, such impropriety or error was cured and corrected in tbe general charge when tbe court said: “The court instructs you not to consider any reference to tbe defendant’s appearance made in tbe argument of tbe case. . . .”

> “Where counsel oversteps tbe bounds of legitimate argument, or abuses tbe privilege of fair debate, and objection is interposed at tbe time, it must be left, as a general rule, to tbe sound discretion of tbe *372presiding judge as to when be will interfere and correct tbe abuse, but be must correct it at some time during tbe trial, and if tbe impropriety be gross it is tbe duty of tbe judge to interfere at once.” *Stacy, C. J.,*in *S. v. Tucker,*190 N. C., 708. *We*do not apprehend tbat tbe impropriety of tbe statement of counsel, if indeed impropriety it was, was so gross as to demand immediate interference by tbe court. In seduction, as well as in bastardy eases, tbe paternity of tbe child is an issue, and tbe resemblance of tbe child to tbe defendant is some evidence of tbe paternity. Tbe child bad been introduced in evidence, and, although tbe defendant bad not gone upon tbe stand as a witness, be was nevertheless in court and observable by tbe jury. *S. v. Tucker, supra,*and •eases there cited. In speaking of tbe prohibition in tbe Fifth Amendment to tbe Constitution of United States against compelling a person to be a witness against himself, *Mr. Justice Holmes*in *Holt v. United States,*218 U. S., 245, says: “But tbe prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of tbe use of physical or moral compulsion to extort communications from him, not an exclusion of bis body as evidence when it may be material.”

Tbe fifth, sixth, eighth and ninth exceptive assignments of error all assail bis Honor’s charge relating to evidence supporting tbe testimony •of tbe prosecutrix required by tbe statute creating tbe crime of seduction. *We*have examined each of these assignments and are of tbe opinion, and so bold, tbat they are untenable. His Honor charged tbat “Tbe statute requires further tbat tbe unsupported testimony of tbe prosecu-trix shall not be sufficient to convict. It means tbat tbe prosecutrix must be supported by evidence of independent facts and circumstances, .added to her testimony and added to her statements as to each of tbe •elements.” This is in accord with tbe decisions of this Court. *S. v. Malonee,*154 N. C., 200; *S. v. Raynor,*145 N. C., 472. A charge is to be taken as a whole, and not broken up into disconnected and desultory fragments, and thus considered. *S. v. Butler,*185 N. C., 625; *S. v. Hege,*194 N. C., 526.

Tbe seventh exceptive assignment of error assails tbe instruction to tbe jury as to what constitutes a reasonable doubt. Tbe excerpt objected to reads: “Tbe defendant is presumed to be innocent, and this presumption goes with him throughout tbe entire trial and until tbe jury is satisfied beyond reasonable doubt of bis guilt; not satisfied beyond any doubt, or all doubt, or a vain or fanciful doubt, but rather what tbat term implies, a reasonable doubt, one based upon common sense and reason, generated by insufficiency of proof.” This is in substantial compliance with tbe decisions of this Court, *S. v. Schoolfield,*184 N. C., 721; *S. v. Hege, supra,*and in tbe absence of a request for more specific and more elaborate instructions cannot be held for error.

*373Tbe tenth exceptive assignment of error is to tbe refusal of tbe court to allow motion for a new trial, and, being formal, is disposed of in tbe •discussion of tbe other assignments.

Tbe eleventh and last assignment of error is to tbe sentence imposed. This assignment was argued before us with considerable vigor and earnestness. Tbe record discloses that tbe sentence imposed was tbe maximum allowed by tbe statute, five years imprisonment in tbe State’s Prison, and that bis Honor immediately after sentence was imposed •dictated a letter to tbe Parole Commissioner wherein be requested that no clemency be extended tbe prisoner, and directed tbe solicitor to institute prosecution against tbe defendant for failure to support bis bastard child. It is tbe contention of tbe defendant that tbe maximum punishment allowed by tbe statute has been exceeded and that Art. I, sec. 14, of tbe Constitution of North Carolina has been impinged in that cruel and unusual punishment has been inflicted.

It is well settled in this jurisdiction that a sentence is not excessive, or “cruel or unusual” when within tbe limits prescribed by tbe Legislature, *S. v. Daniels,*197 N. C., 285, and cases there cited, and tbe sentence of five years imprisonment in tbe State’s Prison being within these limits it cannot be held for error.

Tbe letter of bis Honor to tbe Parole Commissioner and bis instructions to tbe solicitor are not parts of tbe sentence imposed, but were simply tbe exercise of bis personal, if not bis official, prerogative.

In tbe record we find

No error.