Gross v. State
100 So. 177
Miss.
1924
Check Treatment
Anderson, J.,'

delivered the opinion of the court.

Aрpellant, Albert Gross, was indicted and convicted in the circuit court of Wilkinson county of the charge of an assault and battery committed upon his wife, and sentenced to pay a fine of two hundred dollars and to sixty days’ imprisonment, from which judgment he prosecutеs this appeal.

On the trial appellant requested instructions, which were refused by the court, to the effect that appellant had the right to chastise his wife in the form of corporal punishment provided it was done in moderation. The assignment of error bаsed on the refusal of these instructions is the one principally argued, and is the only assignment of error of sufficient merit to require а discussion by the court.

Appellant, to support his position cites 2 Wharton’s Criminal Law (Kerr) section 830, Bradley v. State, Walk. 156, and Thompson v. Thompson, 218 U. S. 611, 31 Sup. Ct. 111, 54 L. Ed. 1180, 30 L. E. A. (N. S.) 1153, 21 Ann. Cas. 921. It was held in the Bradley casе that at common law a husband had the right ‍‌​‌​‌‌‌​​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌​‌‌‌‌‌​​‌‌‌‌​​​‌‌​‌‍to chastise his wife corporally in moderation in case of great emergency. And Wharton, in the section cited, says:

“By the common law the husband possessed the power of chastising his wife, though the tendency of criminal courts in the present day is to regard the marital relation as no defense to a battery.”

The Thompson case involved a civil action by the wife against the husband for an assault and battery by the latter on the former. The case arose in the District of Cоlumbia. The court held that the common-law relation between husband and wife was not so far modified by D. C. Code, section 1155, as to give the wife a right of action to *630recover damages from her husband for an assault and battery committed upon her by him. In discussing the question the court said, among other things :

“Nor is the wife left without remedy for such wrongs. She may resort to the criminal courts, which, ‍‌​‌​‌‌‌​​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌​‌‌‌‌‌​​‌‌‌‌​​​‌‌​‌‍it is to be presumed, will inflict punishment commensurate with the offense committed.”

The attorney-general says, however, that, granting it had been held in the Bradley cаse that under the common law a husband had the right to use physical force in the chastisement of his wife, moderately or otherwise, that principle was overturned by Harris v. State, 71 Miss. 462, 14 So. 266, in wliich latter case the court, in discussing the Bradley case, said:

“That this brutality found in the ancient cоmmon law, though strangely recognized in Bradley v. State, Walker (Miss.) 156, has never since received countenance, and it is superfluous to now say that thе blind adherence shown in ‍‌​‌​‌‌‌​​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌​‌‌‌‌‌​​‌‌‌‌​​​‌‌​‌‍that case to revolting precedent has long been utterly repudiated in the administration of criminal lаw in our courts.”

The attorney-general does not refer to Turner v. State, 60 Miss. 351, 45 Am. Rep. 412, which bears out the idea that, if it ever was the common law that a husband had the right to inflict corporal punishment upon his wife within the bounds of moderation, the principle has long since become obsolete. In that case the husband was indicted and convicted of an assault and battery upon his wife, from which judgment he appealed to the supreme court. The state introduced the defendant’s wife as a witness against him over his objection, as well as over her own objection. The court held that undеr the common law a wife was competent to testify against her husband in a prosecution for assault and battery upon her; thаt, the husband having violated the sanctitj7' and peace of the household, it was deemed better that tbe wife should be permitted to testify than that she should run the risk of injury inflicted upon her by her husband in the privacy of *631domestic life, from which he had the power to exclude witnesses of his offense. The court used this language in part:

“The husband, therefore, who assaults his wife, commits an injury, not only upon her, but upоn society, of which they are members. It is for the injury to the public, committed upon it through the person of the wife, that he is punished. ’ ’

The crime of assault and battery in this state is a common-law and not a statutory offense. In view of that fact appellant takes thе position that it may be conceded that the Bradley case has been overruled and that it is therefore no longer the law of this state that the husband, for the purpose of correction, may inflict corporal punishment upon the wife in moderatiоn, still there could ‍‌​‌​‌‌‌​​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌​‌‌‌‌‌​​‌‌‌‌​​​‌‌​‌‍be no conviction in this case because there is no law left making an assault and battery by the husband on the wife а crime. In other words, that the court is without authority to hold in one decision that a given act constitutes a. crime under the commоn law, and in a later decision to hold exactly the converse; that the common law cannot be one thing to-day and anоther thing to-morrow.

Appellant’s contention, if granted, would mean that the courts could not change their views with reference tо what is the common law, that having once declared what it was there could never be any change except by constitutional or legislative enactment.

We are of the opinion that under certain well-established principles there is no difficulty in solving this question. In Green v. Weller, 32 Miss. 650, and Crane v. French, 38 Miss. 503, it was held that the principles of the common law unsuited to our condition or repugnant to the spirit of our government аre not in force in this state. It was held in Vicksburg Railroad Co. v. Patton, 31 Miss. 156, 66 Am. Dec. 552, that all the rules of common law were not in force in this state, but only such as were adaptеd to ‍‌​‌​‌‌‌​​​‌​​​‌​‌‌‌​​​‌‌​​‌​‌​‌‌‌‌‌​​‌‌‌‌​​​‌‌​‌‍our institutions and circumstances and not repealed by the legislature or varied by usages which *632superseded them. And in Y. & M. V. Railroad Co. v. Scott, 108 Miss. 871, 67 So. 491, L. R. A. 1915E, 239, Ann. Cas. 1917E, 880, the court,, in illustrating what constitutеd the common law, said that if a case was presented not covered by any law written or unwritten, the power of the court is аdequate, and it is the duty of the court to adopt such a rule of decision as right and justice in the particular case seemed to demand, that, not withstanding in such case the decision made the law and not the law the decision, “this is the way the common law itself was made, and the process is still going on,” and further that the common law was not unchangeable, and was not adopted to remain perpetual and unaltered and unalterable, “not to be tempered to our habits, wants, and customs.”

Under the rule declarеd in the Harris case and recognized in the Turner case, there is no exception in favor of the husband as against the wife in the' сommon-law offense of assault and battery. That rule has as much binding force on the courts as if there had never been any other rule. The common law on the subject stands as if the Bradley case had "never been decided or decided the conversе of what it was.

Section 1525, Code of 1906 (Hemingway’s Code, section 1287), providing that offenses not covered by statutes shall be indictable as at common law, simply means that such offenses shall be indictable according to the common law is declared by the courts at the time.

Affirmed.