*1 ARNOLD.1 MAY STATE January 9, 1931. 28,077. No. E. A. Berndt, appellant. John J. Regan Deputy Markham, F. Attorney General, James Henry Benson, for the County Attorney, F. General, Morse, and Frank Attorney state.
Loring., J. degree first grand larceny
Defendant was convicted of trial. The denying order motion for new from an appeals convicted approximately the theft of which she was money to her husband. $2,000 belonging or question whether squarely raises appeal guilty state of the law Minnesota wife
present common a crime At law such property. of her husband’s larceny a husband commit nor could could be committed was that the theory larceny personal property. his wife’s marriage larceny. spouses precluded status contended of the married woman’s act It is now that because (G. seq.) et fact that our Mason, S. 1923 § [2 1927] wholly distinct from penal purely statutory code is in full control of husband, legal status as well as “every used rights, phrase person” and that comes within the she 1 Reported in 235 W.N. (G. Mason, S. 10358). statute We § [2 1927] logic
think opposite of the situation leads to conclusion. If married woman’s act there were no and the status *2 of property rights married remained people as at common there would be no larceny statute, by contention that the the mere of phrase use “every person,” included married women. The of Hartnett, Gray (Mass.) 450, case Commonwealth v. 3 was one where woman of charged appar- ently of person, that a third from a to hus- building belonging band. of provided The statute an penalty Massachusetts increased person for “every who shall of steal- larceny, by commit offense * * ing any building The court held that the statute did not who apply to a married woman committed the offense building. husband’s It based this on holding the construction given by English to of 12 Anne, courts the statute c. 7, passed in 1713 and now but which had never repealed, been force Massachusetts. That applied “every statute to who com- person” * * mitted “in dwelling-house the offense any court The Gray, said [3 451]: previously construction to given terms, by Eng- the same courts,
lish is the given construction to be to them our courts. * * For if it were intended to any exclude known construction of a previous statute, presumption the legal is, that its terms would so changed as to effect that intention.”
Our own court has
that
may
held
we
togo
the common law to
determine the meaning of common
used in
penal
law terms
our
code.
Benson v. State,
(19).
mayWe therefore conclude the use of phrase per- that “every son” our larceny statute does not of itself, without the aid of the married act, woman’s make the a criminal. defendant Is she a by implication? criminal While the rule of strict construction in favor of longer prevails the accused this we state, cannot be- justifies lieve that the “fair rule import” creation of a crime by any which arise out of implication the married woman’s act. has been modified marriage the status opinion In our and contracts act, only property rights woman’s the married that view. own cases sustain Drake thereby. Our affected 1064, A. L. R. 624, 177 N. W. Strom 388, 145 Minn. Drake, 6 L.R.A. (N.S.) 107 N. Minn. W. Strom, 98 A. S. R. 387. larceny of her that a wife not commit common law rule could that her upon rested alone doctrine property
husband’s husband unity but his possessions in the community of interest marriage created; ownership technical of his wife’s marriage. institution of social to have sufficient might the husband been personal property by certainly its his owner- theft, him if he were accused of but protect was not sufficient personal property and control of her alone ship immunity. Something more was justify the doctrine social relation- and that was the protect her, needed meaning. word “social” its broadest marriage, giving ship *3 976, 977, 85 Ohio St. 97 E. case of State Phillips, the 1913B, 250, L.R.A. Ann. Cas. where woman was (N.S.) 142, money, her husband’s it was contended that larceny accused of of might act had her status that she changed the married woman’s so supreme of The court property. of her husband’s guilty be Justice, Ohio St. through of the Chief said Ohio, speaking [85 324]: common unity recognized of and .the husband community on of but the merely goods, is founded not society. the and to recognized obligation family of both to of individual and whatever society family; unit is not the but the of nature family, by irrepealable to undermine the the laws tends of and the state. destroy society the foundations will crumble the ulti- family home and are sanctity peace So that the we do not think that for common law rule. We mate reason legislature has taken inference, mere that safely can hold legislation.” of long the direction destructive step such In the same the court said Ohio St. opinion [85 323]: any “Indeed we doubt that of member that had in contem- body such a plation result when he for protect voted the statutes which rights individual of married con- people. legislature was templating only. the expressed purpose of the and that statutes, They considering at that time and criminal pro- crimes cedure; surely they presumed cannot be to have intended a thing which did clearly fraught express and which is such far-reaching consequences radical domes- to the law of the tic for the relations, abrogation legal doctrine of the of husband and wife, when its pushed logical conclusion, would not only create crimes where there were but before, none would also authorize a husband or wife to maintain civil for tort actions other, such as actions for injuries, assault, * * imprisonment, false or slander thus hun- multiplying a *. dredfold the unhappy differences which have to be settled in the divorce courts. We cannot assume that the legislature intended this very without clear evidence such an intention in the lan- guage the statutes.”
Judge Cooley, speaking supreme Michigan, court Snyder case of 26 Mich. People, Am. R. 302, where a husband was burning accused of his wife’s house, commenting upon the effect of the married act upon arson, woman’s crime said:
“It remains to be seen whether the statutes any have introduced changes which would affect case.
“The statutes upon question arises, those protection of the rights of married women. observed,' But it tois that those do not in go beyond terms ensuring to the wife such as she at own marriage, acquire afterwards, *4 and the giving to her to power protect, the and dispose control the same in her name, own and free from interposition of the husband. None purports of them to operate upon family rela- tions; none takes them from the husband his rights, marital as except they pertain to none them relieves him responsibilities, except they from as relate to the wife’s contracts to obligation support and debts. He is still under the common-law at common law wife, and the services of the regarded support, sup- as the consideration this are still in performed interest, except to be his behalf and his where posed they estate, to her individual or business. The given separate domicil, at husband’s support wife has to receive misbehavior, together has lost it and husband and wife by unless she * * children, have a of the *. The joint interest and control unity of man and woman in marriage relation, more by and control of up giving statutory ownership prop- broken than it would erty, family have been before the such statute, settlement as should her the like and control. At give ownership independent the common action and power judgment was in the husband now it is in her alone; also, many purposes; but authority her to own and convey property, to sue and be sued, is no more inconsistent with the marital than unity, the cor- in him. responding authority presumptively She is still his agent to for the and he is not provide household, deprived of the rights, obligations or relieved of the of head of household, as except their and intent to that effect dealings is indicated. having
“So far from an intent been manifested on part to legislature regard family simply voluntary association legally of two of each their persons, independent other, progeny, changes several of the have been the direction of a unification of Thus, deprived interests. the husband is of all authority sell, charge or otherwise the homestead without mortgage the wife’s con- (cid:127)’ * * complete thereto sent, though his title absolute. He is also precluded selling encumbering from or such chattels as are exempt by execution, law from unless Avithher assent L. if (Comp. 4465); so, may bring he shall to do she attempt § L. Comp. action to recover the same her own name. § husband’s powers privileges These respect exclusively, are not conferred on the Avifefor her own or in benefit husband; but give independent order interests *5 318 in order that family, benefit of the whole her for the given which the support reasonable means of not be deprived they may end that them, save to the
law has endeavored to if their desire. And family, as a such shall be together be kept father, family unity husband and the is still the death of the after to the homestead.” protection given in the regarded Supreme States, Thompson Thomp Court of the United v. son, L.R.A.(N.S.) 51 L. 611, 111, 1180, 218 U. S. 31 S. Ct. ed. 21 Ann. Cas. of not 1153, 921, unity marriage held that the so far married of District of Colum destroyed woman’s act bia as to permit recovery damages battery by of for assault and spouse against one other. In married woman’s considering act, the court held that it was intended to invest a wife with control of her not to confer of action personal tort; change husband for that such a radical of policy centuries would not have been wrought except by language so clear and unmistakable as to doubt of legis leave no lative intention. court of in Alexander supreme Virginia, Alexander, 85 Va. 353, 367, 7 S. E. 1 L. R. A. 125, held that their married * * *. anywise
woman’s act did “not in change affect or of personal relations husband and wife which enter into the status marriage.” York the court of appeals held, referring New to such acts: provisions the statutes we have been relate considering, exclusively property rights parties marriage to the to the contract. Other marital are not them” rights Quilty affected 135 N. L. R. A. 521. Battie, 201, 207, 47, 48, Y. 32 E. same,
Illinois holds the Thomas v. 51 Ill. Thomas, 162, 165, that the should interpreted light acts of the evil intended be cured, literally, Cole v. Van 44 Ill. Riper,
Did our own legislature by implication intend to create the crime either spouse wrongfully appropriated where of the other? If it did so would it not have used intend, language so clear and room for doubt? unmistakable as leave no To create crimes was not purpose purpose these acts. Their was to not to protect rights women, extend the of married sub- ject them to far- penalties existing. theretofore Crimes were from thoughts thest of the advocates of these as well as acts, from legislators those of the who enacted them. Their advocates *6 were doubtless sought equality ardent feminists who of property rights before and an accusation that to trying break in up the marital and it mere any respect other make legalized cohabitation would by have been resented them as well as by the legislatures yielded to their persuasion. Marriage was looked at the time these passed acts were as a sacred social institution, and the as family the fundamental basis of civilization. gist purpose of our in legislature expressed “and phrase, every married woman shall protec receive the same tion of all her as a woman rights which her husband does a man.” Up to the time this law was passed recourse could be had to the criminal law in of misappropriation by case and certainly no additional was intended to protection be conferred on men’s by the married act. property woman’s These acts referred civil to rights only; they purport and remedies did not to create any public As said Minn. Strom, 427, offense. Strom 98 107 N. W. L.R.A. A. 1047, 1048, (N.S.) 191, 6 116 S. R. 387: “This statute to gives a married woman the of action same injuries her own name for any per- sustained to her reputation, son, or as her property husband has his own name to maintain an action for like injuries by him, sustained and no other or greater right. purpose place statute was to the hushcmd and on an as to equality injuries person, actions either to hy or reputation The husband cannot and never could property. bring tort against an action his wife for a committed personal during him coverture.” Drake, 388, 390, And Drake v. 145 Minn. 177 N. W. 9 A. L. R. it was said: to respect an with her husband equality placed upon “She was * * * separate property. of her and control management by the statute granted rights privileges that the words,
other and protection control solely management, to the had reference rights.” her property Minn. 381, 383, N. W. Gillespie Gillespie, case of
In the money. from her husband for conversion a wife recovered 206, 207, Mitchell said: Judge the rela- statute in clearly policy respect declared name in her own can, that the latter
tion of husband wife is any rights form the former enforce any action, sue stranger.” if he were a affecting her the same as only relating Obviously, this refers to civil actions by the statute. any not intimate that crimes were created does if per- torts; do extend to personal Even the civil actions think it would be a strained sonal are not created the act we torts stat- created. The criminal say construction to that crimes are so To remedies; they public protection. private utes are pur- or for or individual personal use them as remedies *7 the law. poses upon by is frowned it
In 153 Minn. 189 W. where Woltman, Woltman v. negligence an action for held that a could not maintain wife cited and Drake cases were husband, the Strom Minn. The court said approval. [153 218]: decided. deliberately considered and thoroughly “These cases were think the de- fully decisions are stated. We The reasons for the to.” cisions should be adhered of the married clearly scope that
Those reasons indicate The court said property rights. confined to woman’s act should be Minn. in Woltman case further, 218]: [153 and Drake cases. fully considered the Strom “This statute was husband place it the statute purpose It was held that was the action in right bring tort, to the equality on an as and wife that it to the gives wife the same possessed husband more. The husband has no right to sue his for her personal tort. Hence the statute gives no such right against him. privilege litigation of this sort of is denied to both.”
If the legislature its wisdom desires to create crime larceny in of this cases character it has the undoubted power to do so. That is a matter of policy, policy is for the legislature, has the power of making laws, a denied to the courts. power opinion our the legislature has neither nor expressly impliedly acted create the offense with which the defendant is charged. The order appealed from is reversed. J.
Holt,
I dissent. J.
Hilton,
I dissent.
HAROLD M. HANSEN v. WILLIAM J. MOORE.1
January 16, 1931. 27,975. No. Chapin, Walter L. for appellant. E.
Gilbert Harris and Albin Pearson, S. for respondent.
1 Reported in 234 W.N.