State v. . EdensState v. . Edens
(after stating the facts). We do not find it necessary to pass upon the form of the indictment and the effeсt of its omission to state slanderous language imputed, or to aver that it was uttered in'the hearing and prеsence oí any one, both of which are required to be averred in a complaint in a civil aсtion, since we propose to dispose of the appeal upon the ruling to which the first exception is taken, with the remark that similar forms of indictment have been heretofore before the Court and acted on without objection for these alleged defects.
State
v.
McDaniel,
Can an indictment be sustained against the husband for charging the wife with incontinency? At common law verbal slander was not the subject of a criminal prosecution, and is n‘ow a misdemeanor only in the case of the imputation of a want of virtue in аn innocent woman made in a wanton and malicious attempt to destroy her reputation.
Does the enactment embrace those sustaining marital relation, or is its operation confined to those not thus related?
The changes made in the Constitution of 1868, and the enactments in pursuance of its provisiоns in reference to married women, are directed to the preservation and disposal of property, as separate estate, but do not materially affect the personal relations of the parties except as incidental tp property and its use. . This right she may assert against her husbаnd as well as against a stranger, now in an action at law, as is decided in
Manning
v.
Manning,
This reasoning applies with equal forсe to the construction of our own law, and excepting those of marital relations from its comprehensive scope, including all others. It may be suggested that an indictment might lie, while an action for damаges would not, as in case of the assault and battery of the wife by the husband. But it is not correct to say that suсh an indictment maj in all cases be maintained. It is only where the battery is so great and excessive as to put life and limb in peril, or where permanent injury to the person is inflicted, or where it is prompted by a mаlicious and wrongful spirit, and not within reasonable bounds, that the law interposes to punish. In other cases, short of these extremes, it drops the curtain upon scenes of domestic life, preferring not to take cognizance of what transpires within that circle, to the exposure of them in a public prosecution. It presumes that acts of wrong committed in passion will be followed by contrition and atonement in a cooler moment, and forgiveness will blot it out of memory. So, too, the harsh and cruel word that sends a pang to the sensitive heart may be recalled, and relations that should never have been interrupted by an unkind or unwarranted expression, again restored. The unnumbered mischiefs that might flow *697 from making an unguarded аnd false imputation upon the wife’s chastity the subject of a public criminal proceeding, are so obvious that We cannot think the General' Assembly intended such a possible result. Not only might this destroy the freedоm and cordiality of marital intercourse, but it would tend to make a perpetual estrangement and sеverance,, and cut off the reconciliation that may be expected to succeed а temporary difference and the atonement of a full repentance. Our law regards the marriage relation sacred and permanent, life-long in its duration, and it leaves temporary differences and wrongs which one may do to the other to the corrective hands of time and reflection, in cases-where they admit this remedy. We are not disposed, in carrying out the policy of separate properties, to break in needlessly upon that oneness of husband and wife, which is the fundamental and chеrished maxim of the common law, by extending the act beyond all the beneficent purposes it was intendеd to subserve, to cover cases of slander.
The judgment cannot be arrested, because the woman is not described in the indictment as wife of the defendant, but-the jury ought to have been instructed, upon the evidence, to acquit.
The verdict must be set aside and a venire de novo awarded.
Error. Reversed.