| N.J. | Jun 15, 1871
The opinion of the court was delivered by
The object of the several bills of exceptions in this ease appears to be to obtain the opinion of this court whether, in view of certain admitted facts, it was proper to allege in this indictment, that the articles stolen were the property of Michael Martin. This person and his wife, Jemima Martin, were examined as witnesses, and stated certain facts relative to the ownership and possession of the property in question; and on the part of the defence, it is insisted that it thus appears that both the ownership and possession, at the time of the theft, were in the wife, and that, consequently, there was no proof to sustain the allegation of title in the husband. But this position is founded on an assumption that is not warranted by the facts as they appear upon the record. The difficulty is, that it is not shown that the facts testified to by the husband and wife are the only facts respecting the ownership of this property which were before the jury. The first bill of exceptions recites the evidence of Mr. Martin and his wife; it also states that several other witnesses, who are named, were examined on the part of the prosecution. What the subject, or the purport, of this evidence was, is not shown. Under such circumstances, therefore, it is impossible for tin's court to assume that none of this undisclosed testimony related to the question of the ownership of the property which had been stolen. In order to raise the question discussed in the briefs of counsel, it was indispensable, either that all the evidence should have been set forth, in extenso, in this bill of exceptions, or that it should have been stated that none of it applied to the point of title, except that which is recited. This has not been done, and the consequence is, the defendant could not have prevailed, even though the grounds of his exceptions, arising from the
But there are also other obstacles which seem to me insurmountable. The question which the court is asked to decide has not been properly presented. The case stands before the court in this form:
When the state rested, the counsel of the defendants insisted that the court should order the discharge of his clients, on the ground that the evidence did not sustain the allegations of the indictment. This position is manifestly untenable. The court cannot non-suit the state. A bill of exceptions ought not to have been signed, founded on this ground.
After the case had been rested on both sides, the court was asked, in behalf of the defence, to state to the jury certain propositions, which -were claimed to'be legal rules, applicable to the case. Five of these propositions the court rejected; and each of them seems to-me to be either inadmissible as law, or inapplicable to the case. The first of these disallowed specifications was in the words following, viz.: “ First. That under the laws of this state, a married woman, may hold property as if she were a single woman, and if the property so held be stolen, the indictment must allege the ownership in her, and any different allegation of ownership, if contradicted by the proof, will be fatal, and the defendants must be acquitted.”
That this, as a legal proposition, is erroneous, appears to me to be entirely clear. It assumes that a married woman, unlike every other owner of property, cannot make a bailment of it. If she can legally part with the temporary possession of it, then it is not true that the indictment must allege the ownership in her. It would have been a misdirection to have charged in this particular, as requested.
“Second. That if the jury believe, from the evidence, that the house and furniture belong to Jemima Martin, and that she and her husband, Michael Martin, were living there, though temporally absent, the possession was in Jemima Martin.”
“ Third. That the trespass committed in the alleged larceny was upon the property and possession of Jemima Martin, and she only would be entitled to damages for sueh trespass.”
This requisition called upon the court to settle the matter of fact that the property, and possession of the stolen property, was in Jemima Martin; and this was, incontestibly, the province of the jury. Besides, the court could not properly be required to explain to the jury the possession which will sustain a trespass, and who would be entitled to damages, under the facts in proof in that form of action. This was an abstract question, having, at the best, but an analogy to the case on trial.
“ Fourth. That unless the prooí' shows that the ’wife received directly, by way of gift from the husband, the property mentioned in the indictment, it was hers, and not the property of her husband; that the presumption, in the absence of proof, is in favor of the absolute ownership by the wife.”
An attempt appears to be here made to draw a distinction between a gift coming directly from the husband, and such gift coming from the same source by indirect derivation. I cannot perceive the principle for such a distinction, nor the application of such a distinction to the case. Nor is it understood how “the presumption, in the absence of proof, is in favor of the absolute ownership of the wife.”
“ Fifth, and lastly. That the reason of the common law why the ownership could not be laid in the wife, is done away with by the statute which permits her to hold property, and that when the reason of the law fails, the law itself fails.”
This proposition involves a mere generality, which eould not possibly have any practical bearing on the case. There
I think, from the foregoing statement of these specifications of rules of law, which the court was requested to place before the jury, it is apparent that none of them involves the point which,' as I have stated, is mooted and discussed in the briefs which havé been placed in our hands. But they are all informal and insufficient in another respect, that is to say, they do not show either that the judge refused to charge on the points embraced in the propositions, or what the charge upon such points, in fact, was. A refusal of the court to adopt the words of counsel, and to charge in a specified formula, is no error in any case; and the consequence is, that when the point specified is put to the jury, under instructions, such instructions must be set forth in the bill of exceptions. In other words, when a particular matter of law is explained to the jury, a misdirection must be shown, or there can be no reversal. Where there is a refusal, to charge at all on a point that is involved in the case, such refusal is, in itself, an error in law. But in the present instance, it does not appear that the judge refused to charge, with respect to any one of the propositions above set forth, and it was' therefore indispensable for such instructions to be spread on the face of the bill of exceptions. All the precedents are in this form; and the rule in question is an important one in practice. It very often happens that a judge will refuse to state the law in the words suggested to him by counsel, and prefers to put the law of the point before the jury in his own way, and with such amplifications or exceptions as he deems advisable. Such a course is a technical refusal to charge in the prescribed form; and yet, the rule of law, as stated, may be, in its effect in the case, equivalent to the charge as requested. And hence the propriety of the actual instructions being made to appear. At all events, such has been, it is believed, the invariable re
It is clear, then, that without a violation of this settled course of practice, we cannot on this occasion, hearken to the objections to the proceedings on the trial made in behalf of these defendants.
It may, however, be satisfactory for me to state that I have looked into the questions arising out of the ground assumed in the briefs of counsel, and that I am of opinion that the point relied on by the defence is not well founded. After reflection, and an examination of analogous cases, I am of opinion that whenever the property of the wife is, in the ordinary way, in the use of the husband and his family, such property, in an indictment for larceny, may be laid either in the husband ov ia the wife, at the pleasure of the pleader. The general title is in the wife, and the right to immediate possession when required, and hence it is clear that the title may be said to be in her. So far, by force of the acts relating to married women, her separate existence must be recognized by the courts of common law. And when the title and the possession are both in her, the title can be laid only in her. This point was so held in a ease in which the spectacles of a married woman were stolen. Com. v. Martin, 1 Am. L. Reg. 434. But in case the married woman puts her property in use in the family of her husband, such acts give the husband, who is still the head and master of the household, such a
If, therefore, nothing had appeared further than the fact of a common user in the family of Michael Martin, of these articles in question, I should have been of the opinion that the pleader had the right to describe' him, in the indictment, as the owner. But, even if this view was extreme, and might be subject to doubt, still, in the present case, there were certain facts which would have required the case to go to the jury, with respect to the possession as a matter of fact. Among such facts was the circumstance that this property was, at the time of the larceny, in the custody of an agent. It is true that the wife made the arrangement with this agent; but it does not necessarily follow that in that transaction she was not acting as the representative of her husband. Indeed’ this would seem to be the fair presumption, as it was an act done
But, as I have already said, this question is not properly before the court.
On account of the imperfections in the bill of exceptions, above stated, the judgment should be affirmed.
Judgment affirmed.