State v. Fulton

Olaric, C. J.,

dissenting: The indictment charges that the defendant “did unlawfully and wilfully, in a wanton and malicious manner, attempt to destroy the reputation of Carrie Eulton, his wife, being then and there an innocent and virtuous woman, by words spoken of and concerning the said Carrie Eulton, the wife of the said Winston Fulton, which amounted to a charge of ineontinency against the said Carrie Fulton.” The bill was quashed, and the State appealed. For the purpose of the appeal the charge must be taken as true, and the sole question is whether the facts constitute an indictable offense.. The question cannot now arise whether the wife would be a competent witness to prove herself “an innocent and virtuous woman,” nor how the offense can be proven if she is not a competent witness to that fact. Quashing a bill is like a demurrer that the complaint does not state a cause of action. The facts charged must be taken as true.

The indictment is drawn under Revisal, 3640.

The preamble which discloses the purpose of the Legislature in the passage of this act is as follows:

“Whereas, the very existence in society of «innocent and unprotected women depends upon the unsullied purity- of their characters; now, therefore, to protect them against persons who may attempt in a wanton and malicious manner to destroy their reputation the General Assembly of North Carolina do enact:” See chap. 156, Laws 1879.

The statute provides, that if “any person3 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, “every personJ so offending shall be guilty of a misdemeanor. . To sustain the quashing of this indictment, the Court is compelled to write into this statute several words which the Legislature did not put in it. The statute must be made to read, “If any person {except a husband) shall-attempt in a wanton and malicious manner to destroy the reputation of ‘an innocent and virtuous woman’ (other than his wife) by words written or spoken, which amount to a charge of incontinency ‘every person’ {except such husband) shall be guilty of a misdemeanor.”’

It cannot be questioned that the Legislature could have written such words in the statute, but it did not do so. Whence then does this Court derive its authority to insert them ?

It cannot be contended even that the insertion of those words improves the statute in any particular. When a- “man who has promised at the altar to love, comfort, honor and keep his wife, in sickness and in health,” attempts in a wanton and malicious manner to destroy her reputation by falsely and publicly charging her with incontinency it is more cowardly and damning than if he had so charged another woman who, perhaps, has a protector to whom her good name is “above rubies,” anid who stands ready to resent the charge. The wife, is usually defenseless unless the husband defend her. Does the law therefore exempt her from the protection accorded to all other “innocent and virtuous” women ? The statute, as written by the law-making body, does not deprive her of the protection accorded to any other innocent and virtuous woman. Why should the courts remake the statute and write into it so many words to give it that effect ?

It is said that the law should “draw a veil over dealings between man and wife.” But this is not such dealing, and even if it were, the law has “never drawn a veil” when her body is assaulted by her husband and serious injury inflicted. Why then should it be done when the injury inflicted is more cruel and abiding than the red welt- of a husband’s lash ? It is true that for the aforesaid purpose of “drawing a veil over dealings between man and wife,” for long centuries the husband was held authorized to inflict personal chastisement upon the wife, provided “no serious bodily harm or permanent injury were inflicted” or, as some decisions phrased it, “if the rod used was not larger than the husband’s thumb.” But in State v. Oliver, 70 N. C., 61, this Court overruled numerous decisions to that effect, Settle, saying, “The Courts have advanced from that barbarism until they have reached the position that the husband has no right to chastise his wife, under any circumstances.”

Our. courts were slow to reach this position, having h.eld just the opposite as late as State v. Rhodes, 61 N. C., 453 (1868), in which the Judge below charged that a man had a right to whip his wife with, a switch no larger than his thumb,' and on appeal it was held “no error,” and Slate v. Rhodes was cited and approved in State v. Mabrey, 64 N. C., 593 (1870). “Having advanced from that barbarism” by the ruling in State v. Oliver, 70 N. C., 61, the latter case was reaffirmed in State v. Dowell, 106 N. C., 724, and no one-now questions that a husband is liable for an assault if he chastises his wife “under any circumstances whatever.”

If the Court will no longer “draw the veil over dealings' between man and wife,” i. e., will not leave the wife outside' tbe protection of tbe law in snob matters as leave no permanent injury and may be sometimes forgiven and forgotten, wby should it “outlaw” a woman when tbe very gist of tbe offense against Her is its publicity, and its very nature sucb that neither sbe nor tbe public can forget it ?

It is said, however, that this Court has held that the bus-band was not liable for slandering bis wife in State v. Edens, 95 N. C., 693. But, as we have seen, tbe statute contains no words exempting tbe husband from liability under, nor depriving the wife of tbe protection of, the statute. Centuries of uniform decisions did -not preserve to husbands a vested interest in the right “to whip their wives with a switch no larger than tbe husband’s thumb.” And one single decision, not warranted by tbe terms of tbe statute and, in fact, contrary to it, cannot confer upon the defendant of any other husband a “vested right” to slander his wife by falsely and maliciously charging her with a want of that womanly virtue without which sbe is an outcast in society.

Besides, an examination of State v. Edens shows that it is based upon the very reasoning used in State v. Rhodes and similar cases, and that it contains no reference whatever to the subsequent case of State v. Oliver, 70 N. C., 61, which had overruled the previous cases and denied the soundness of tbe reasons, which bad been given in them for depriving tbe wife “of tbe equal protection of the laws.” State v. Edens has been referred to since, but has been approved on this point by no case whatever. It stands alone.

It may be noted also that even the old line of cases, which were repudiated as “barbarism,” in State v. Oliver, 70 N. C., 61, held a husband liable for an assault when it was not of a trifling nature, but-serious, or the assault was made in a wanton and malicious manner, as threatening with a deadly weapon (which inferred malice) though no damage was done. State v. Davidson, 77 N. C., 522.

So that, even under the reasoning in the old line of cases now discarded as “barbarous,” the Court would not “draw a veil” to deprive a woman of- the protection of the law, when the damage done was of a serious nature (as is a public charge of a want of chastity) and the injury is wanton and malicious.

Statutes making slander of woman indictable are a recent ‘ development, and the protection intended should be as broad as the spirit which caused their enactment. They should protect all innocent, and virtuous women, and against all lying and malicious tongues whatsoever.

For the old do-ctrine that a man had a right to thrash his wife whenever he pleased, provided he did not “use a switch larger than his thumb,” or did not “do serious bodily harm or inflict permanent injury,” three reasons were given, none of which justify giving the husband privilege and immunity “to wantonly and maliciously destroy his wife’s reputation by false charges of adultery.” It was said:

1. It is the “husband’s duty to make the wife behave herself” and thrash her if necessary to that end, as, Pearson C. J., held in State v. Black, 60 N. C., 263. But it has no tendency to “make her behave herself” to falsely and maliciously scatter abroad charges'of adultery against her to “destroy her reputation.”

2. “To draw a veil over dealings between man and wife,” the idea being that a little wholesome chastising, to “make her behave herself,” privately administered, would make less noise and scandal.than the publicity of a -court trial. But to attack the reputation of a wife by charges of adultery is publicity, and to make doing so falsely and maliciously punishable is to 'prevent such scandal and publicity. . It is not, like the thrashing, a '“dealing between man ánd wife,” or done for any possible motive'of his “making her behave,” but to. attempt to destroy her reputation is a dealing by the man with the public, and the act must be'proven to have been done wantonly and maliciously, or there can be no conviction.

8. That there was a long line of decisions giving the husband privilege and immunity to inflict chastisement. But there is only one case that has. ever held he can, with impunity, “falsely and maliciously” slander her.

As notwithstanding the three above given most excellent reasons set out in the old decisions, a husband is no longer privileged to chastise his wife, in moderation, why should we hold that he is privileged to slander her when not one of these reasons apply to slander of the wife ?

To the,,credit of husbands, few cases presenting this point have arisen. Indeed, Slayton v. The State, 108 Am. St. 988; 46 Tex. Crim. Appeals, 205, appears to be the only case,' except Stale v. 'Edens, in which it has arisen in this country, and, in Slayton’s case, upon a statute almost identical with ours, it was held that the husband was liable for maliciously and wantonly slandering his wife. We will search in vain for any good mason why he should not be. We shall certainly find no reason for so holding in the words of the statute: That does not except him. Under our present humane laws, a man will not be allowed to “wantonly and maliciously” injure his horse or his dog that belongs to him. Is his wife in worse condition?

Should it be difficult to enforce the statute against the husband, in such cases, because the wife may not be a competent witness to prove her own chastity (as to which we express no opinion) it rests with the Legislature to remedy that defect, if it exists, if it shall see proper'.

The misconception of the statute in State v. Edens did not repeal it or give the defendant a vested right to slander his wife.. Should he be convicted and the Judge find that the defendant would not have wantonly and maliciously attempted to destroy his wife’s reputation, by falsely charging her with adultery, but for his knowledge of State v. Edens, and therefore, supposing that he was immune from punishment, the Judge can give that fact such weight as he thinks proper in imposing sentence, or the governor can do so in passing upon a petition for pardon or commutation. But what we now declare the meaning of the statute to be is a declaration' of what it meant when passed. The defendant Edens is the only person entitled to be protected by the erroneous construction placed on the statute in his case.

Oliver was held guilty of assault in whipping his wife (State v. Oliver, 70 N. C., 61), though for centuries it had been erroneously held that he could do, with impunity, exactly what he did. Indeed, Pearson, O. J., had very recently repeated the .old decisions in State v. Black, 60 N. C., 264, and Reade, J., in two cases above cited, State v. Rhodes, 61 N. C., 453, and State v. Mabrey, 64 N. C., 592. Yet both these Judges concurred in State v. Oliver in overruling these cases.

In Mial v. Ellington, 134 N. C., 131, we held that Mial was entitled to his office though this Court had held otherwise for seventy years. It would lead to insuperable embarrassments to hold that an inadvertent decision of a Court is a contract with the public. In State v. Bell, 136 N. C., 677, Connor, J., puts the decision on the ground that the overruled decision rested on the construction of' a contract.

Three Judges in their opinion filed in this case hold, that under Eevisal, sec. 3640, a husband who “wantonly and maliciously attempts to destroy the reputation of an innocent woman” is indictable even though such “innocent woman” happens to be his wife. State v. Edens, 85 N. C., 522, is overruled. Nothing else appearing the judgment of the Court below quashing the bill must be reversed. In the opinion filed by only one member of the Court it is held (and no concurrence therein is expressed in any other opinion) that the overruled decision is a bar and protection against an indictment. It would seem logically and necessarily to follow that tbe quashing of tbe bill should be reversed. See per curiam at end of opinions in Stewart v. Lumber Co., 146 N. C., 116.