State v. RobinsonState v. Robinson
- Reporters:
- , ,
- Before:
- Walker, Clark
1. A married woman, without the written consent of her husband, cannot make a valid executory contract, unless it falls within the exceptions of the Revisal, sec. 2094; and where there is no evidence of such assent she cannot be held criminally liable for wilfully refusing to work certain crops on lands “rented” by her, under the Revisal, sec. 3367.
2. When owing to the illness of the trial Judge the cause could not proceed to judgment, and when, without default or laches on the part of the defendant, she had her motion continued and moved for a new trial upon exceptions reserved at the next term, when judgment was pronounced against her, from which she appealed, the appeal was lost under Revisal, sec. 534; but a new trial will be granted, as the loss resulted from an act of God, which she could not foresee, and the consequences of which she could not avoid.
3. In an appeal from a conviction in criminal cases it is not only proper, but the duty of the Supreme Court, when a new trial is granted, to decide upon the legal merits of the case, if it appears that the State cannot ultimately succeed in the prosecution.
The defendant was indicted under Revisal, sec. 3367, for wilfully refusing to work certain crops on land “rented” to her by the prosecutor, and for wilfully abandoning the same before paying advances made by her landlord. She was at the time she entered into the contract of renting in 1905 and
Was the contract of the defendant void? Her general executory contracts, not authorized by the statute, have been held to be void. Mordecai’s Law Lectures, pp. 328, 329, and 358. It is also settled that the husband is entitled to the society and to the services of his wife, and consequently to the fruits of her industry. She cannot contract to render those services to another without his consent. Those rights were given to the husband, it is said, because of the obligation imposed by the law upon him to provide for her support and that of their offspring, and the right continues unimpaired so long as the legal duty continues to exist. Syme v. Riddle, 88 N. C., 463; Baker v. Jordan, 73 N. C., 145; Hairston v. Glenn, 120 N. C., 341; Kee v. Vasser, 37 N. C., 553; McKinnon v. McDonald, 57 N. C., 1; Cunningham v. Cunningham, 121 N. C., 413. There was no evidence that the husband assented to the contract. Nor do we think there is any evidence in this case to show that the contract falls within any of the classes mentioned in the Revisal, sec. 2094, as contended by the Assistant Attorney-General in his able and well-considered argument, so as to take the case out of the general rule that her executory contracts are void. Baker v. Garris, 108 N. C., 218. On the contrary, such facts as we have in this case have been held not to bring the contract of
Without intending to discuss the subject or to re-examine the reasons upon which the many decisions of this Court are based with a view of testing their soundness, it may simply be remarked that if we should hold a married woman to be bound by a contract for her services entered into, not only without the consent but against the will of her husband, it might prove disastrous to the marital relation and be productive of a long train of most evil consequences. There should be a clear expression of the policy of the State upon this important question, if there is to be a change, and it will best come from the law-making body.
What we have said about the wife’s earnings and the validity of her contracts relates to her general right to contract, rather than to her power to dispose of her property, real or personal. The Legislature has seen fit not to change the law as it has repeatedly been declared to be, although its attention has more than once been called to the matter, and although there have been many sessions of that honorable body since the law was first so declared. We took occasion recently in Ball v. Paquin, 140 N. C., 83, to again direct attention to the subject, but an examination of the public statutes will show that there was no responsive legislation at the last session. It would, therefore, seem to be of the opinion that the Consti
We cannot overlook the fact that the motion for a new trial, upon the exception reserved, was not made during the term of the Court at which the case was tried. This is expressly required to be done by the statute, Revisal, sec. 554, and it has been held that it cannot be made after the term has expired. Turner v. Davis, 132 N. C., 187. But it appears in this case that the Judge who presided at the trial was taken ill and could not proceed with the business of the Court. He could not even pronounce the judgment against the defendant. The motion for a new trial could be made at any time before this was done. No laches can be imputed to the defendant. Shall she lose her right to enter her motion for a new trial and to have it heard and considered where there has been no default on her part, but she was prevented from taking the proper steps for that purpose solely by the act of God, which is so treated by the law as to affect no one injuriously? The answer to this question should clearly be in the negative. What, then, is her remedy? We must ascertain from analogous cases. When an appeal had been duly taken, and the Judge had lost his notes, so that the case could not be stated, a new trial has always been ordered, unless the appellant had been negligent. State v. Powers, 10 N. C., 376; Isler v. Haddock, 72 N. C., 119; Sanders v. Norris, 82 N. C., 243; State v. Randall, 88 N. C., 611; Commissioners v. Steamboat Co., 98 N. C., 163; Burton v. Green, 94 N. C., 215; Owens v. Paxton, 106 N. C., 480; and especially
In Regina v. Justices, 15 Q. B. (69 E. C. L.), 88, the notice of appeal was not served in time by reason of the respondent’s death, and the Court held that the condition of giving notice, annexed to the right of appeal, having been imposed by the law, and performance of it having become impossible by the act of God, the appellant was excused from such performance, and accordingly ordered the appeal to be heard as if the notice had been duly given. And substantially the same ruling was made in Newton v. Boodle, 3 C. B. (54 E. C. L.), 795. There the appellant lost the benefit of a bill of exceptions tendered to the ruling of a Judge at nisi prius, or at the assizes, by the death of the Judge and without any default of his own, and the Court permitted him to move for a new trial, notwithstanding the proper time had elapsed, so that he might be restored to the position he would have occupied if the bill of exceptions had not become abortive by the death of Chief Justice Tindal of the Court of Common Pleas, before it could be sealed and perfected by that Judge who had presided at the trial. The remedy was an adequate and an appropriate one under the practice of the Court at
Our opinion on the merits has been expressed, thinking that it might end the prosecution unless the facts as now presented are materially changed, which does not now seem to be probable. Where a case must go back for another trial, it is not only proper, but it may be fairly regarded as a duty of the Court to decide upon the legal merits, if it appears that the State cannot ultimately succeed in the prosecution or the plaintiff in the litigation. It prevents the useless expenditure of time and the unnecessary accumulation of costs, and there are other and perhaps weightier reasons for taking such a course.
Why order a new trial unless there was error, and how can we know whether there was error or not unless we examine into the merits of the case?
New Trial.
This renders it obiter to discuss the merits of the case. It is true that Syme v. Riddle, 88 N. C., 463, and some cases following it, have held (not without question, however) that a husband is entitled to the earnings of his wife; but in my judgment that decision is opposed to the entire thought and civilization of the day and ought not to be held now as authority. It was based upon the preconceived opinion of Judges who rested their decision upon the barbarous doctrine of the common law under which a woman upon marriage became non sui juris, and her husband took her property and her earnings as fully as a master became entitled to the property and earnings of his slave. The decision in Syme v. Riddle is directly opposed to the language of the Constitution,
In England the Court of Chancery by judicial legislation, pure and simple, originated the status of the wife’s separate property, and created the doctrine, by judicial enactment, of “charging in equity,” which has since been completely repealed and effaced by the more progressive action of Parliament. In 1870 Parliament enacted that a married woman was entitled to her earnings, for the above action of the courts had applied only to the wealthier classes, to married women owning property, which the Court of Chancery could reach and control. In 1882 Parliament enacted in substance the provision of the North Carolina Constitution, that a married woman’s property of every description, whether acquired before or after marriage, shall be in her sole control, and went further by dispensing with any necessity of the husband’s assent to conveyances of the wife’s property (which is the only restriction upon her freedom of control required by our Constitution), and gave the wife absolute freedom of contract.
It would seem, indeed, that the wife here had a right to her earnings; the Constitution so says, and there is certainly no statute upon our books to the contrary. As the husband went home every Saturday and spent Sunday with his wife, and there is no evidence that he raised any objection to her working the crop, the jury would doubtless have found upon proper instructions that the defendant’s contract for work was to aid in the support of herself and family. They could hardly have supposed in reason that it was for any other purpose. This being so, she had a legal right to agree that the product of her labor should go to the payment for provisions furnished her, being necessaries for herself and family. The Consti
In Christopher v. Norvell, 201 U. S., 216, it is held that a married woman owning stock in a National bank is subject to a personal judgment, like every one else, for an assessment on the stock, notwithstanding that under the laws of the State a married woman cannot enter into a contract, because since the laws of the State do not incapacitate her to own such stock, she assumes the liability incident to its ownership. For the same reason, since the laws of this State do not incapacitate a married woman to work a crop as tenant or on shares, she is liable to the criminal law, to the same extent as any one else, for receiving advances on such crop and afterwards abandoning the work. Her liability for such conduct arises under the statute, and not by virtue of her contract. Christopher v. Norvell, supra.
There has been as to married women some approximation to the Constitution in late legislation. Laws 1901, ch. 617, now Rev., 2016; Finger v. Hunter, 130 N. C., 529; and this Court has often recommended more effective legislation to conform to the Constitution, Bank v. Howell, 118 N. C., 273; Ball v. Paquin, 140 N. C., 96. In view of the present great confusion in the law as shown in the table in Vann v. Edwards, 128 N. C., 431-435, such legislation is badly needed.
This statute is doubtless a very convenient one for landlords in the counties named. But if upon full consideration it shall prove to be unenforcible it may result in great loss to them. While in most cases its operation may prove a convenience to the tenant in aiding him to get supplies, and not a hardship, it is capable of great abuse. It is at least wise to call attention to the matter, that it may not be supposed that the Court has passed upon the enforcibility of these sections.