95 N.C. 588 | N.C. | 1886
(State v. Alford,
The defendant's counsel requested an instruction that in order to a conviction, it was incumbent on the State to show that some permanent injury had been inflicted.
This was refused, and the jury was charged that "a parent had the right to inflict punishment on his child for the purpose of correction, but the punishment must not be `excessive and cruel,' nor must it be `to gratify malicious motives;' that if the whipping was such as described by the daughter, there would arise a question as to the severity and extent of the punishment; that if the jury were convinced that it was cruel and excessive, the defendant would be guilty; that it was not necessary that it should result in a permanent injury to her, and if it was excessive andcruel it would be sufficient to make the defendant guilty." It will be observed that the test of the defendant's criminal liability is the infliction of a punishment "cruel and excessive," and thus it is left to the jury without the aid of any rule of law for their guidance to determine.
It is quite obvious that this would subject every exercise of (590) parental authority in the correction and discipline of children — in other words, domestic government — to the supervision and control of jurors, who might, in a given case, deem the punishment disproportionate to the offence and unreasonable and excessive. It seems to us, that such a rule would tend, if not to subvert family government, greatly to impair its efficiency, and remove restraints upon the conduct of children. If, whenever parental authority is used in chastising them, it could be a subject of judicial inquiry whether the punishment was cruel and excessive — that is, beyond the demerits of the disobedience or *490 misconduct, and the father himself exposed to a criminal prosecution at the instance of the child, in defending himself from which he would be compelled to lift the curtain from the scenes of home life, and exhibit a long series of acts of insubordination, disobedience and ill-doing — it would open the door to a flood of irreparable evils far transcending that to be remedied by a public prosecution. Is it consistent with the best interest of society, that an appeal should thus lie to the Court from an act of parental discipline, severe though it may be, and unmerited by the particular offence itself, perhaps, but one of a series evincing stubbornness and incorrigibility in the child, and the father punished because the jurors think it cruel and immoderate?
While the ruling of the Court is not without support in some of the adjudication, to which reference is made in 2 Whar. Cr. Law, § 1259, we prefer to abide by the rule by which the limits to the exercise of the right of family government are to be ascertained, laid down after a lucid exposition of the subject by that humane and just man, so long a member of this Court, Judge GASTON, in State v. Pendergrass,
While acts of indiscreet severity are not criminally punishable, unless under the conditions set out, their check for the good and welfare of society must be found in the promptings of parental affection and a wholesome public opinion, and if these are insufficient, they must be tolerated as an incident to the relation, which human laws cannot wholly remove or redress.
Such are the concluding sentiments, and almost in the words of the Judge.
So remarks READE, J., in State v. Rhodes,
The principle was extended to one living with the mother of the child, though not married, in State v. Alford,
The test, then, of criminal responsibility is the infliction of permanent injury by means of the administered punishment, or that it proceeded from malice, and was not in the exercise of a corrective authority. It would be a dangerous innovation, fruitful in mischief, if, in disregard of an established rule assigning limits to parental power, it were to be left to a jury to determine in each case whether a chastisement was excessive and cruel, and to convict when such was their (593) opinion.
We do not propose to palliate or excuse the conduct of the defendant in the present case. The punishment seems to have been needlessly *492 severe, but we refuse to take cognizance of it as a criminal act, because it belongs to the domestic rather than legal power, to a domain into which the penal law is reluctant to enter, unless induced by an imperious necessity.
There is error. Let this be certified to the end that the verdict be set aside and a venire de novo ordered.
Error. Reversed.
Cited: S. v. Dickerson,