ber of statutes declared void by the courts. 24 unanimously that our statutory enactment cre ating the offense of slandering an innocent woman does not embrace those persons who sustain marital relations to each other, and that its operation is confined to those not thus related. In speaking of the long-established policy of the law as bearing upon the married relation, Chief Justice Smith eloquently says: "In other cases, short of these extremes, it drops the curtain upon scenes of domestic life, preferring not to take cognizance of what transpires within that circle, to the exposure of them in a public prosecution. It presumes that acts of wrong committed in passion will be followed by contrition and atonement in a cooler moment, and forgiveness will blot it out of memory. So, too, the harsh and cruel word that sends a pang to the sensitive heart may be recalled, and relations But in his opinion the W. A. COUTTS. Sault Ste. Marie, Mich. (24) Fed. & St. Const. Preface, p. 8. HUSBAND AND WIFE-CRIMINAL RESPON- STATE v. FULTON. Supreme Court of North Carolina, Nov. 25, 1908. A husband may be convicted of slandering his wife under Revisal 1905, sec. 3640, providing that, if any person shall attempt in a wanton and malicious manner to destroy the reputation of an innocent woman by words written or spoken which amount to a charge of incontinency, he shall be guilty of a misdemeanor. BROWN, J.: It is admitted by the learned counsel for the state that this court has long since decided that a husband is not indictable for slandering his wife under our statute (State v. Edens, 95 N. C. 693, 59 Am. Rep. 294), and we are asked to overrule that decision. It was in 1886 that the eminent jurists who occupied this bench at that time held that should never have been interrupted by an unkind or unwarranted expression again restored. The unnumbered mischiefs that might flow from making an unguarded and false imputation upon the wife's chastity the subject of a criminal proceeding are so obvious that we cannot think the General Assembly intended such a possible result." The decision made by a court composed of sages of the law who were as chivalrous as they were pure and learned has become a part of the statute, and has been lived up to and acted upon since 1886. For 22 years the General Assembly has acquiesced in such construction, and thereby approved it. It is a well-known fact that the last Legislature voted down a bill intended to change it. The decision has been cited as authority and with approval in subsequent cases in this court. State v. Lewis, 107 N. C. 972, 12 S. E. 457, 13 S. E. 247, 11 L. R. A. 105; State v. Haddock, 109 N. C. 873, 13 S. E. 714. Whatever might be our impressions were the matter "res integra," we deem it important in the construction of statutes to adhere to what has already been adjudged. The judicial interpretation becomes as it were a part of the statute itself. This view of the case is presented very strongly by Justice Walker in Hill v. Railroad, 143 N. C. 574, 55 S. E. 854, 9 L. R. A. (N S.) 606; Ashe v. Gray, 90 N. C. 137; Lockhart v. Bell, 90 N. C. 500; Wells' Res Adjudicata, pp. 542, 543. The judgment of our predecessors has abundant support in the decisions of other courts and in the text-books. Mr. McLean, an approved writer on Criminal Law (section 1045), says: "A husband is not indictable for defaming his wife, and it has been so held in England, notwithstanding the married woman's act." In support of the text the author cites the decision of this court in State v. Edens. There 15 husband and wife were considered but as one It is a statute of New York, as broad and com- her husband's goods; the reason being that prehensive as the one construed in Eden's Case, which says: "Any married woman may maintain an action in her own name for damages against any person, for an injury to her person and character, the same as if she were sole." It was insisted in Freethy v. Freethy, 42 Barb. (N. Y.) 641, that the words "any person" are so comprehensive as to include the husband, and give the right to the plaintiff to maintain an action for slander against the defendant, her husband. The New York court held that the Legislature did not intend by so general a statute to change the common-law rule as to the disability of husband and wife to sue each other, saying that the evils to be remedied "are but trifling when compared with such as would result from the litigation between them of suits like the one in question. When the Legislature intends to make such a striking innovation of the rules of the common law and so much opposed to public policy and the peace and happiness of the conjugal relation as would be the case if husband and wife were permitted to sue each other for alleged wrongs to character, it should use such language as will make it clearly manifest, and not leave it to the construction of the courts." It is a rule of construction, generally recognized, that statutes should receive such interpretation as is agreeable to the rules of the common law in cases of that nature, for statutes are not presumed to alter the common law further than the act expressly declares. 9 Bac. Abr. p. 245. It is not enough that a case be within the letter of the statute, if it be not also within the intention and spirit of it. Numerous cases can be found in the books where an act came within the letter of the statute, but was declared not to be within its intention, 2 Bac. Abr. 249; 9 Bac. Abr. 250; 2 Inst. 384; People v. Insurance Co., 15 Johns, (N. Y.) 358, 8 Am. Dec. 243; White v. Wager, 25 N. Y. 328. It would be a legal anomaly to hold that the husband may be convicted and punished for slandering his wife, and that she could not sue and recover damages for the wrong done her. The married woman's act enacted by the English Parliament in 1882 (45, 46 Vict. c. 75, § 12) gives to a wife remedies by criminal proceedings for her protection and the protection of her property. She can also sue in her own name for torts and wrongs done to her. Yet the Queen's Bench held that a wife could not before and cannot since the aforesaid act take out criminal proceedings against her husband for defamatory libel. The Queen v. Lord Mayor, 16 Q. B. Div. Law Rep. 772. From the earliest times it has been held that the wife cannot be convicted for stealing There is another very cogent reason why the construction given this statute in the Eden Case should be adhered to, and that is because the wife, whose character is at stake, cannot be permitted to testify against her husband upon the trial of the indictment. being an indictment against the husband, he has the right to offer himself as a witness in his own defense, and under oath justify the charges he has made, and he could testify to facts that would blast the wife's character if believed. He could testify that he saw her in the act of adultery and the wife's lips are closed, for she is legally incompetent to testify against her husband when indicted for crime. except when charged with an assault and battery on her person, or for abandoning her or for neglecting to support her. Revisal 1905, § 1635. There are no other exceptions to her statutory incompetency. This general disability of those occupying the marital relation to testify against each other is founded on the soundest principles of public policy, and has been recognized from the earliest times since the case of Lord Audley, 3 How. State Trials, 402. So it was well known to the General Assembly that in indictments under the statute we are considering the husband can testify in his own defense, but the wife may not be called to contradict him or to defend her own honor. In an action for divorce, neither husband nor wife is permitted to testify concerning the adultery of the other, but under this indictment the husband can testify in his own behalf and prove adultery upon the part of his wife, while her mouth is sealed by the law. It is inconceivable that the General Assembly could leave the wife in any such cruel position while undertaking to legislate for her protection. If the Legislature had intended to include husband and wife within the purview of this statute, doubtless it would have amended the law so as to make the wife a competent witness, as in the other cases, to prove the crime committed against her, not only to contradict her husband, but also to prove her own virtue and continence, an essential fact incumbent upon the state to affirmatively prove before a conviction can be had. Without the evidence of the wife the prosecution must be doomed to failure. Her evidence could scarcely be supplied. We think it best to adhere to the judgment of our predecessors, and leave any change to be made by the Legislature, if in its wisdom any is deemed desirable. If by legislation this statute should be extended so as to embrace those who are husband and wife, the lawmaking power can and will do the latter the plain justice to open the door that she may be a competent witness in a proceeding where her honor is at stake. Three justices having voted to quash the indictment the judgment of the superior court is affirmed. HOKE, J., concurs. NOTE. The Common Law As To Crimes Of Husband Against Wife And American Doctrine. -If North Carolina is not among American, court's, exactly in an unique position as to the old barbarity of wife beating, as a right (either assumed to have existed, or actually formerly existing), it is almost so. In nearly every state where decision is found it has been looked upon as a sort of anachronism to say that a husband has any lawful right to commit any violence upon his wife. One court has doubted whether or not it has ever been recognized as a right at common law. Thus in Fulgham v. State, 46 Ala. 143, the opinion quotes from 4 Blackstone Com. 444, 445, to show it was merely a privilege allowed to the "lower rank of people," and then the Alabama court says, in effect, that as there is not, in the eye of American law, any lower rank of people, so there is nowhere in this land any place for manifestation of this barbaric privilege. How vapid, if it was true as Blackstone said, seems fine spun sentiment about its being the policy of law, as derived from our ancestors, to draw a veil over marital infelicities and thus invite the dove of peace to smooth out the tangles of discord and strife of married people. Mississippi, in its earlier day, recognized what it considered the common-law rule, but later the circumstances of a case led its supreme court to make the following obiter declaration: "The suggestion in the evidence of a belief amongst the humbler classes of our colored population of a fancied right in the husband to chastise the wife in moderation makes it proper for us to say that this brutality found in the ancient commonlaw, though strangely countenanced in Bradley v. State, Walker (Miss.) 156, has never since received countenance, and it is superfluous to now say that the blind adherence shown in that case to revolting precedent has long been repudiated in the administration of criminal law in our courts." In Georgia the husband's "entire right is to use force to repel an assault by her on him or his property." In Kentucky the wife is declared entitled to the same protection from violence at the hands of her husband that a stranger is entitled to. See Richardson v. Lawton, 4 Ky. Law Rep. 998. In Massachusetts, where, as the result of a husband striking his wife with his open hand, she fell and striking her head on the ground died, it became pertinent in view of the claim by the defense that this was the unanticipated result of a lawful act, for the court to say that: "Beating or striking a wife with the open hand is not one of the rights conferred on a husband by marriage and where she falls from the blow and dies, he is at least guilty of manslaughter." Coin v. Thompson, 108 Mass. 458, 11 Am. Rep. 383. But the common-law theory of the husband's duty and right to control his wife's action is not abrogated entirely in this country. Thus, prior to the above Massachusetts holding, it was ruled in that state, that keeping a house of ill fame at a place where the family resided was deemed the husband's act, though the home was the separate property of the wife, the law simply giving her the right to use her property in a legitimate way. Com. v. Wood, 97 Mass. 225. And in Alabama and Texas, the husband has been deemed to have such a duty and responsibility as to the conduct of his wife that he may show in mitigation of his offense in beating her, that he was "immediately provoked" by her bad behavior and misconduct. Robbins v. State, 20 Ala. 36; Greta v. State, 10 Tex. App. 36. In Delaware, see State v. Berckley, 2 Harr. 552 in New York, see People v. Winters, 2 Park Cr. R. 10, and in Pennsylvania, see James v. Com. 12 S. and R. 220, wife beating was declared unlawful. In Illinois the unity idea in marriage was held not militated against except as necessarily resulting there from in the "married woman's law" allowing free disposition of her separate property, and therefore the old rule obtained that no larceny could be committed by either converting the other's property. See Thomas v. Thomas, 51 Ill. 162. What seems to this writer the cardinal error adopted by the minority of the North Carolina court. and the entire bench in the Eden case, (prospectively overruled) is in their thinking that there was any place for strict construction of general words, such as "any person," and taking them in a limited sense. Let it be conceded, that, at common law, a husband was not indictable for slandering his wife, and still that might be deemed so because slander of wife might have been looked upon as having about the same heinousness as was whipping the wife with a stick "no larger than the thumb." The North Carolina statute, on its face, imports differently. It looks on slander amounting to a charge of incontinency against an innocent woman, as being peculiarly cruel, and bearing the same comparative seriousness to other slander that serious assault bears to moderate correction. Therefore, if serious assault on the wife could be punished at common law, why could rot serious slander, if slander had then been ditsinguished as serious and slight? might well be, that a husband, however foolish and unwise his conduct might be deemed, ought not to be indicted for slandering his wife by speaking of her as being an eligible candidate for "the ducking pond," when he should be indicted for falsely publishing her as an un chaste woman. It The married woman's acts have not appeared to have been considered greatly, as factors in the conclusions reached. This annotation may not be deemed particularly of practical benefit, as happily cases have been and will continue to be rare, where prosecutions are instituted. A husband who would go around publishing the shame of his wife is generally too contemptible to be believed or it will be thought that suspicion has so mastered him, that circumstances which to him only are "confirmation strong as proof of Holy writ," are to others merely "trifles light as air." It is useful, however, for us sometimes to hark back to old conditions, and, while we may reverence the great learning and intense legal spirit that built up the common law structure of olden days, we should not follow blindly the precedents, which had a sort of accidental association with it. They merely show the difficulties surrounding the old masters. Such a matter as I have been considering was not a thing of legal principle so much as a concession to the spirit of the age. It was a sort of blot on, rather than a part of, the common law. It would not have obtained in different and higher civilization, and it is rightly repudiated now. It is the essence only of common law principle we inherited. Just as gavelkind and primogeniture and villenage never came over here, as not being suited to our conditions, so also if wife beating might ever have been supposed to rightfully have obtained a foothold, it should have been deemed expelled by the declaration of independence, making all men (and this includes women) free and equal. N. C. C. JUDGE JAMES B. WHITFIELD APPOINTED SUPREME JUDGE OF FLORIDA. James B. Whitfield was on January 5, 1909, chosen for the second time Chief Justice of the Supreme Court of Florida. Judge Whitfield was first appointed to the Bench in 1904, to fill a vacancy. Since then he has been twice elected. In January, 1905, he was chosen Chief Justice, but as his commission under the appointment expired in June of that year, he was Chief Justice only five months. He will now be Chief Justice until 1913. Prior to his appointment to the Supreme Bench he had been Clerk of the Supreme Court, County Judge, State Treasurer and Attorney-General of the state. He is a native of North Carolina, but has spent most of his life at Tallahassee, Florida. (We are delighted to be able to make this announcement. Judge Whitfield has been unusually courteous to the Central Law Journal, has always regarded it as one of his best advisers and continually put us under obligations to him for his many valuable suggestions, relative to the importance of many recent decisions. Ed.). BOOK REVIEWS. CORRESPONDENCE. VALIDITY OF RELEASE SECURED FROM INJURED PARTY AT A TIME WHEN REASON IS IMPAIRED. Editor Central Law Journal: With reference to your Editorial in the Journal of August 14, (67 Cent. L. J. 121), I call your attention to the case of Mayer v. Haas, 126 Cal. 560. The case supposed by you is where "the employer's attorney has secured a release while the injured party is in no fit condition of mind to understand what he has agreed to." This is ractically the condition of affairs in the Meyer case. It makes no difference whether the condition of mind taken advantage of was the result of the injury or simply ignorance. In this case, a physician in the service of the employer got the injured man to sign a release, thinking it was a mere receipt for loss of time. In answer to the contention that the plaintiff was not seeking to rescind the release and had not offered to restore the money received by him at the time he signed it, the court said: "No offer to return the money was necessary, for the reason that the plaintiff in this case 'is not attempting to avoid a contract which he has made, but is showing that he did not make the contract which he apparently made;'" citing many cases. See exactly parallel case: Yaple CORPORATION MANUAL SUPPLEMENT, 1908-09. The Corporation Manual now in its fifteenth edition, has become an absolute necessity to corporation lawyers and officers of corporations doing business in other states. No other work attempts to give so accurately and so promptly the changes and additions to the corporation laws of each state of the United States. The fifteenth edition of the manual is a most complete exposition of corporation statute law arranged according to a uniform classification. Since, however, the appearance of this last regular edition a large number of states have added to, modified or subtracted from their corporation regulations which the present supplement purports to chronicle. This work is very ably done under a corps of noted editors, headed by Mr. John S. Parker. Printed in one volume of 384 pages and published by the Corporation Manual Co., New York. AMERICAN STATE REPORTS, VOL. 122. Annotated cases are now the ideal of a working lawyer. It is the most practical way of reaching quickly the meat of any particular question of law. The Trinity series is entitled to the credit of first establishing this mode of presenting the law upon a substantial basis. The present volume, edited by Hon. A. C. Freeman, is one of the best in the whole series. The first annotation, and to our mind one of the best monographs in any series of reports is the annotation to the case of Bank of Eau Claire, v. Reed, 232 III. 238. The subject of the annotation is Scire Facias, and nowhere have we read a more concise, clear and exhaustive discussion of the purposes of this writ, so often misunderstood. Other subjects discussed in exhaustive monographs are as follows: Grant of Easements by Implication. p. 206; Protection of Exemptions Against Proceedings in Another State; Evidence to Explain the Meaning of Words Used in a Written Contract; Liability of Railroad Companies for the Negligence, Mistakes and Misrepresentations of Ticket Agents; Continuance in Criminal Cases Because of Absence of Witnesses; Constitutionality of Statutes Regulating the Time and Method of Payment of Wages; Apportionment of Accretions. Printed in one volume of 1182 pages and published by Bancroft Whitney Company, San Francisco, Cal. CYCLOPEDIA OF LAW AND PROCEDURE, VOL. 29. Every successive volume of Cyc. as it appears arouses new interest. It is safe to say that nothing equals this work in all the range of law publishing unless it be the great reporter system of the West Publishing Company. Volume 29 adds a very important volume to the set. The principal articles in this volume are Mutual Benefit Insurance, by Louis Longee Hammon; Navigable Waters, by C. A. Nichols; Negligence, by John C. Hurspool; Neutrality Laws, by Thomas Hodgins; Newspapers, by John King; New Trial, by C. A. Robbins; Notaries, by C. B. Seymour; Notice, by E. G. Chilton; Novation, by E. C. Ellsbree; Nuisances, by J. W. Magrath; Officers, by F. J. Goodnow; Pardons, by A. C. Boyd; Parent and Child, by J. W. McGrath; Parliamentary Law, by E. G. Chilton. Printed in one volume of 1696 pages and published by American Law Book Company, New York, N. Y. SCHOULER'S IDEALS OF THE REPUBLIC. A very interesting portrayal of American ideals issues from the pen of James Schouler, LL. D., in which that learned writer sets forth with remarkable conciseness and consummate skill those ideals universally cherished in this country and jealously guarded by laws and constitutional inhibitions. He first discusses those ideals that flowered out at the time of the American revolution and are represented by the great declaration of Thomas Jefferson in the Declaration of Independence that "all men are created equal." Tracing this ideal of equality in all its manifestations, in the exercise of personal property and family rights, the author dignifies the principle underlying this ideal to be peculiarly an American invention, refuting the claim that our Declaration of Independence was modeled after that of the United Netherlands in 1581 by showing that this very doctrine of equality was not recognized, especially in view of the fact that the divine right of kings to govern was recognized. The author then discusses in subsequent chapters and in a most humorous vein the subject of civil rights, political rights, government by consent of the governed, written constitutions, federal union of sovereign states, the discipline of liberty, the three subdivisions of governmental authority, parties and party spirit, public officials as public servants, and the great ideal of private business and social life, the strife to surpass. The American who reads this volume will find a mirror of his own ideals held up to view with an accuracy that is indeed creditable. Printed in one volume of 303 pages, bound in cloth and published by Little, Brown & Co., Boston, Mass. HUMOR OF THE LAW. A correspondent writes US that down in Jackson, Miss., there is a justice of the peace who is a bit hard of hearing. On one of his court days, some time ago, there were four or five lawyers in the court room who were carrying on a protracted argument about the relative merits of John Sharp Williams and James K. Vardaman as candidates for the United States Senate. Finally the justice could stand it no longer. "Looky hyar," he said with an air of grim determination, "you lawyers have got to stop that racket. I've done disposed of four cases while you been arguin' over there, an' I ain't heard a word of testimony in 'em at all." -Law Notes. While Lawyer W. H. Lewis was trying a case in one of the sessions of the Superior Court the other day, he called to the stand as a witness a negro of the purest ebony hue. The opposing counsel questioned this witness sharply on the cross-examination, winding up with: "Where do you live now?" "At the house of correction." "What are you there for." "Assaulting a man." "I am trying," said counsel to Lewis, "to establish this man's antecedents." "Go ahead," said Lewis, "when you get through I'll establish his antecedents, too." When the lawyer had finished his cross-examination Lewis asked: "Where were you born?" "In Ireland." "Where in Ireland?" "In Dublin." "Where in Dublin?" "On Chapel street, Cradle." between Coffin and "So you are an Irishman, are you?" "Yes, sir."-Green Bag. Several decades ago there lived in Charleston, W. Va., a judge noted for his boorish manners, says the Philadelphia Ledger. A very finical lawyer whom he especially disliked was once trying a case before him and all the while the barrister spoke the judge sat with his feet elevated on the railing in front of him, hiding his face. Exasperated by this the lawyer queried: "May I ask which end of Your Honor I am to address?" "Whichever you choose," drawled the Judge. "Well," was the retort, "I suppose there is as much law in one end as the other." |