ASSAULT AND BATTERY, tried before Little, J., at Fall Term, 1867, of the
Superior Court of WILKES.
The defendant was indicted for an assault and battery upon his wife, Elizabeth
Rhodes. Upon the evidence submitted to them the jury returned the following
special verdict:
"We find that the defendant struck Elizabeth Rhodes, his wife, three licks, with
a switch about the size of one of his fingers (but not as large as a man's
thumb), without any provocation except some words uttered by her and not
recollected by the witness."
His Honor was of opinion that the defendant had a right to whip his wife with a
switch no larger than his thumb, and that upon the facts found in the special
verdict he was not guilty in law. Judgment in favor of the defendant was
accordingly entered and the State appealed.
HEADNOTES:
1. The laws of this State do not recognize
the right of the husband to
whip his wife, but our courts will not
interfere to
punish him for
moderate
correction of her, even if there had been no
provocation for it.
2. Family government being in its nature as complete in itself as the State
government is in itself, the courts will not attempt to control, or
interfere with it, in favor of either party, except in cases where
permanent or
malicious injury is
inflicted or threatened, or the condition of the party is
intolerable.
3. In determining whether the husband has been guilty of an indictable assault
and
battery upon his wife, the criterion is the
effect produced, and not the manner of producing it or the instrument used.
(S. v. Hussy, Bus., 123;
S. v. Black, 1 Wins., 266, cited and approved;
S. v. Pendergrass, distinguished and approved.)
COUNSEL:
Attorney-General for the State.
No counsel for defendant.
READE, J. The
violence complained of would without question have constituted a
battery if the subject of it had not been the defendant's wife. The question is how
far that fact affects the case.
The courts have been loath to take cognizance of trivial complaints arising out
of the
domestic relations--such as master and apprentice, teacher and pupil, parent and child,
husband and wife. Not because those relations are not subject to the law, but because the
evil of publicity would be greater than the
evil involved in the trifles complained of; and because they ought to be left to
family government. On the civil side of this Court, under our divorce laws,
such cases have been unavoidable and not infrequent. On the criminal side there
are but two cases reported. In one the question was, whether the wife was a
competent witness to prove a
battery by the husband upon her, which
inflicted
no great or
permanent injury. It was decided that she was not. In discussing the subject the Court said,
that the abstract question of the husband's right to
whip his
wife did not arise.
S. v. Hussy, Bus., 123. The other case was one of a
slight
battery by the husband upon the wife after gross
provocation. He was held not to be
punishable. In that case the Court said, that 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.
S. v. Black, 1 Winst. 266. Neither of those cases is like the one before us. The first
case turned upon the competency of the wife as a witness, and in the second
there was a
slight
battery upon a strong
provocation.
In this case no
provocation worth the name was proved. The fact found was that it was
"without any
provocation except some words which were not recollected by the witness." The words must have been of the
slightest import to have
made no impression on the memory. We must therefore consider the
violence as unprovoked. The question is therefore plainly presented, whether the court
will allow a conviction of the husband for
moderate
correction of the wife without
provocation.
Our divorce laws do not compel a separation of
husband and wife, unless the conduct of the husband be so cruel as to render the wife's
condition
intolerable, or her life burdensome. What sort of conduct on the part of the husband would
be allowed to have that effect, has been repeatedly considered. And it has not
been found easy to
lay down any iron rule upon the subject. In some cases it has been held that actual and
repeated
violence to the person
was not sufficient. In others that insults,
indignities and neglect without any actual
violence, were quite sufficient. So much does each case depend upon its peculiar
surroundings.
We have sought the aid of the experience and wisdom of other
times and of other countries.
Blackstone says
"that the husband, by the
old law, might give the
wife
moderate
correction, for as he was to answer for her misbehavior, he ought to have the power to
control her; but that in the polite reign of Charles the Second, this power of
correction began to be doubted."
1 Black 444. Wharton says, that by the ancient common law the husband possessed the power
to chastise his wife; but that the tendency of criminal courts in the present
day is to regard the marital relation as no defense to a
battery. Cr. L., secs. 1259-60. Chancellor Walworth says of such
correction, that it is not authorized by the law of any
civilized country; not indeed meaning that England is not
civilized, but referring to the anomalous relics of barbarism which cleave to her
jurisprudence. Bish. M.
& D., 446, n. The
old law of
moderate
correction has been questioned even in England, and has been repudiated in
Ireland and Scotland. The old rule is approved in Mississippi, but it has met
with
but little favor elsewhere in the United States.
Ibid., 485. In looking into the discussions of the other States we find but little
uniformity.
From what has been said it will be seen how much the subject is at sea. And,
probably, it will ever be so: for it will always be influenced by the habits,
manners and condition of every community. Yet it is necessary that we should
lay down something as precise and practical as the nature of the subject will admit of,
for the guidance of our courts.
Our conclusion is that family government is recognized by law as being as
complete in itself as the State government is in itself, and yet subordinate to
it; and that we will not
interfere with or attempt to control it, in favor of either husband or wife, unless in
cases where
permanent or
malicious injury is
inflicted or threatened,
or the condition of the party is
intolerable. For, however great are the
evils of ill temper, quarrels, and even personal conflicts inflicting only
temporary
pain, they are
not comparable with the
evils which would result from raising the
curtain, and exposing to public
curiosity and criticism, the nursery and the bed chamber. Every household has
and must have, a government of its own, modeled to suit the temper, disposition
and condition of its inmates. Mere ebullitions of
passion, impulsive
violence, and
temporary
pain, affection will soon forget and forgive, and each member will find excuse for
the other in his own frailties. But when trifles are taken hold of by the
public, and the parties are exposed and disgraced, and each endeavors to
justify himself or herself by criminating the other, that which ought to be
forgotten in a day, will be remembered for life.
It is urged in this case that as there was no
provocation the
violence was of course excessive and
malicious; that every one in whatever relation of life should be able to purchase
immunity from
pain, by obedience to authority and faithfulness in duty. And it is insisted that in
S. v. Pendergrass, 2 D.
& B. 365, which was the case of a schoolmistress whipping a child, that doctrine
is laid down. It is true that it is there said, that the master may be
punishable even when he does not transcend the powers granted;
i. e., when he does not inflict
permanent injury, if he grossly abuse
his powers, and use them as a cover for his malice. But observe, the language
is, if he
grossly abuse his powers. So that every one would say at once, there was no cause for
it, and it was purely
malicious and cruel. If this be not the rule then every
violence which would amount to an assault upon a stranger, would have to be
investigated to see whether there was any
provocation. And that would contravene
what we have said, that we will
punish no case of
trifling importance. If in every such case we are to hunt for the
provocation, how will the proof be supplied? Take the case before us. The witness said
there was no
provocation except some
slight words. But then who can tell what significance the
trifling words may have had to the
husband? Who can tell what had happened an hour before, and every hour for a
week? To him they may have been sharper than a sword. And so in every case, it
might be impossible for the court to appreciate what might be offered as an
excuse, or no excuse might appear at all, when a complete justification exists.
Or, suppose the
provocation could in every case be known, and the court should undertake to weigh the
provocation in every
trifling
family broil, what would be the standard? Suppose a case coming up to us from
a hovel, where neither delicacy of sentiment nor refinement of manners is
appreciated or known. The parties themselves would be amazed, if they were to
be held responsible for rudeness or
trifling
violence. What do they care for insults and
indignities? In such cases what end would be gained by investigation or punishment? Take a
case from the middle class, where modesty and purity have their abode, but
nevertheless have not immunity from the frailties of nature, and are sometimes
moved
by the mysteries of
passion. What could be more harassing to them, or injurious to society, than to draw a
crowd around their seclusion? Or take a case from the higher ranks, where
education and culture have so refined nature, that a look cuts like a knife,
and a word strikes like a hammer; where the most delicate attention gives
pleasure, and the
slightest neglect
pain; where an
indignity is disgrace and exposure is ruin. Bring all these cases into court side by
side, with the same offense charged and the same proof made; and what
conceivable charge of the court to the jury would be alike appropriate to all
the cases, except
that they all have
domestic government, which they have formed for themselves, suited to their own
peculiar conditions, and that those governments are supreme, and from them
there is no appeal except in cases of great importance requiring the strong arm
of the law, and that to those governments they must submit themselves.
It will be observed that the ground upon which we have put this decision is not
that the husband has the
right to
whip his wife much or little; but that we will not
interfere with family government in
trifling cases. We will no more
interfere where the husband
whips the wife than where the wife
whips the husband; and yet we would hardly be supposed to hold that a wife has a
right to
whip her husband. We will not inflict upon society the greater
evil of raising the
curtain upon
domestic privacy, to
punish the lesser
evil of
trifling
violence. Two boys under fourteen years of age
fight upon the playground, and yet the courts will take no notice of it, not for the
reason that boys have the
right to
fight, but because the interests of society require that they should be left to the
more appropriate discipline of the school room and of home. It
is not true that boys have a right to
fight; nor is it true that a husband has a right to
whip his wife. And if he had, it is not easily seen how
the thumb is the standard of
size for the instrument which he may use, as some of the old authorities have
said; and in deference to which was his Honor's charge. A light blow, or many
light blows, with a stick larger than the thumb, might produce no injury; but a
switch half the size might be so used as to produce death. The standard is the
effect produced, and not the manner of producing it, or the instrument used.
Because our opinion is not in unison with the decisions of some of the sister
States, or with the philosophy of some very respectable law writers, and could
not be in unison with all, because of their contrariety--a
decent respect for the opinions of others has induced us to be very full in
stating the reasons for our conclusion. There is no error.
Let this be certified, etc.
PER CURIAM.
No error.