This was an indictment for assault and battery tried before BAILEY, Judge, at
Term of Ashe Superior Court, 1864.
The defendant was indicted for an assault on Tamsey Black, his wife. The
evidence showed that the defendant and his wife lived separate from each other.
The defendant was passing by the house of one Koonce, where his wife then
resided, when she called to him in an angry manner and asked him if he had
patched Sal Daly's bonnet, (Sal Daly being a woman of ill fame.) She then went
into the house and defendant followed her and asked her what she wanted, when
she repeated her question about the bonnet. Angry words then passed between
them. He accused her of connection with a negro man and she called him a hog
thief, whereupon the defendant seized her by her hair and pulled her down upon
the floor and held her there for some time. He gave her no blows, but she
stated on the trial that her head was considerably hurt and that her throat was
injured and continued sore
for several months, but that he did not choke her nor attempt to do so. At the
trial she was entirely recovered. After she got up from the floor she continued
her abuse of him. A verdict of guilty was entered,
subject to the opinion of the Court. The Judge being of opinion with the State
gave judgment accordingly.
HEADNOTES:
A husband cannot be convicted of a battery on his wife unless he inflicts a
permanent injury or uses such
excessive violence or cruelty as indicates malignity or
vindictiveness; and it makes no difference that the
husband and wife are living separate by agreement.
The cases of the State
vs. Pendergrass, 2 Dev. and Bat., 365, and Joyner
vs. Joyner, 6 Jones, Eq., 325, cited and approved.
COUNSEL:
Winston, Sr., for the State.
No counsel for the defendant in this Court.
PEARSON, C. J. A husband is responsible for the acts of his wife, and he is
required to govern his household, and for that purpose the law permits him to
use towards his wife such a degree of force as is necessary to control an
unruly temper and make her behave herself; and unless some
permanent injury be
inflicted, or there be an excess of
violence, or such a degree of
cruelty as shows that it is
inflicted to gratify his own bad
passions, the law will not invade the domestic forum or go behind the curtain. It
prefers to leave the parties to themselves, as the best mode of inducing them
to make the matter up and live together as
man and wife should.
Certainly the exposure of a scene like that set out in this case can do no
good. In respect to the parties, a public exhibition in the Court House of such
quarrels and fights between
man and wife, widens the breach, makes a reconciliation almost impossible, and
encourages insubordination; and
in respect to the public, it has a pernicious tendency: so,
pro bono pulico, such matters are excluded from the Courts, unless there is a
permanent injury or
excessive
violence or
cruelty indicating
malignity and
vindictiveness.
In this case the wife commenced the
quarrel. The husband, in a
passion provoked by
excessive abuse, pulled her upon the floor by the hair, but restrained himself, did not
strike a blow, and she admits he did not choke her, and she continued to abuse
him after she got up. Upon this state of facts the jury ought to have been
charged in favor of the defendant. State
vs. Pendergrass, 2 Dev. and Bat., 365;
Joyner vs. Joyner, 6 Jones Eq. 322, 325.
It was insisted by Mr. Winston that, admitting such to be the law when the
husband and wife lived together, it did not apply when, as in this case, they were living
apart. That may be so when there is a divorce
"from
bed and board," because the law then recognizes and allows the separation, but it can take no
notice of a private agreement to live separate. The husband is still
responsible for her acts, and the marriage relation and its incidents remain
unaffected.
This decision must be certified
to the Superior Court of law for Ashe County that it may proceed according to
law.