The defendant, in writing and in apt time, requested the following instruction, to wit: “The court instructs the jury that to convict the defendant it is encumbent upon the State to satisfy the jury beyond a reasonable doubt that the promise to marry was absolute and not conditional upon his securing a divorce or any other condition.” The trial judge in his general charge to the jury said: “Now, as to the promise of marriage, that is the second element. First, I instruct you that the promise must be unconditional; that is, there must be no condition attached to the promise. Now, to illustrate what I mean, if a woman yields herself to a man and testifies that he promised to marry her if anything happened, that would not be an unconditional promise. It would hot be sufficient promise to support a bill of indictment.”
The instruction given the jury by the trial judge was correct in itself and supported by many decisions. However, the defendant insists *833that the case was tried upon the sole theory that the promise of marriage was conditioned upon securing a divorce, and that the prosecuting witness knew that there was no final judgment of divorce, and further knew that such judgment was necessary before a valid marriage could be consummated. Therefore, the defendant asserts that the special instruction tendered by his counsel, emphasizing the particular part that the divorce proceeding played in the case, was vital to his defense. The general instructions given the jury inadvertently overlooked this particular phase of the evidence.
The general rule of law pronounced in many cases in this jurisdiction is to the effect that the parties cannot- require a trial judge to parrot prayers for instruction or to become a mere judicial phonograph for recording the exact and identical words of counsel. Nevertheless, “it is an equally well established rule that if a request is made for a specific instruction, which is correct in itself and supported by evidence, the court, while not required to adopt the precise language of the prayer, must give the instruction, at least in substance, and a mere general and abstract charge as to the law of the case will not be considered a sufficient compliance with this rule of law. ... It would seem to follow from this rule, and to he inconsistent with it if we should not so hold, that if a special instruction is asked as to a particular aspect of the case presented by the evidence, it should he given by the court with substantial conformity to the prayer.” Baker v. R. R., 144 N. C., 36, 56 S. E., 553. See, also, Savage v. Davis, 131 N. C., 159, 42 S. E., 571; Horne v. Power Co., 141 N. C., 50, 53 S. E., 658; Parks v. Trust Co., 195 N. C., 453, 132 S. E., 473; S. v. Lee, 196 N. C., 714, 146 S. E., 858.
This Court has consistently held the view that if a party desires some special phase of a case that is material, supported by evidence and relied upon at the trial, submitted to the jury, he must, in apt time, present a proper special instruction. If he fails to do so, he cannot complain if such phase is not adverted to in the charge, which is otherwise correct. Consequently, if he presents such proper special instruction upon such particular phase, he has a right to insist that the trial judge shall submit every material part of it as written.
In the case at bar the defendant built his defense upon the theory that he was a married man, not divorced, and that the prosecuting witness knew it. Manifestly, the contention, presented by the special instruction that the promise of marriage was conditioned upon the divorce decree, was material and vital upon that particular phase of the case. Therefore, the Court is of the opinion that the defendant is entitled to a
Schenck, J., took no part in the consideration or decision of this case.