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.
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.
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.