STATE v. A. B. RHODES.
SUPREME COURT OF NORTH CAROLINA, RALEIGH
61 N.C. 453;
1868 N.C. LEXIS 38; 1 Phil. Law 453
January, 1868, Decided
PRIOR HISTORY: [**1] ASSAULT AND BATTERY, tried before Little,
J., at Fall Term, 1867, of the Superior Court of WILKES.
The defendant was indicted for an assault and battery upon his wife,
Elizabeth Rhodes. Upon the evidence submitted to them the jury returned
the following special verdict:
"We find that the defendant struck Elizabeth Rhodes, his wife, three
licks, with a switch about the size of one of his fingers (but not as
large as a man's thumb), without any provocation except some words uttered
by her and not recollected by the witness."
His Honor was of opinion that the defendant had a right to whip his wife
with a switch no larger than his thumb, and that upon the facts found in
the special verdict he was not guilty in law. Judgment in favor of the
defendant was accordingly entered and the State appealed.
HEADNOTES: 1. The laws of this State do not recognize the right
of the husband to whip his wife, but our courts will not interfere to
punish him for moderate correction of her, even if there had been no
provocation for it.
2. Family government being in its nature as complete in itself as the
State government is in itself, the courts will not attempt to control, or
interfere with it, in favor of either party, except in cases where
permanent or malicious injury is inflicted or threatened, or the condition
of the party is intolerable.
3. In determining whether the husband has been guilty of an indictable
assault and battery upon his wife, the criterion is the effect produced,
and not the manner of producing it or the instrument used.
(S. v. Hussy, Bus., 123; S. v. Black, 1 Wins., 266, cited
and approved; S. v. Pendergrass, distinguished and approved.)
COUNSEL: Attorney-General for the State.
No counsel for defendant.
JUDGES: READE, J.
OPINION: [*454] READE, J. The violence complained of would
without question have constituted a battery if the subject of it had not
been the defendant's wife. The question is how far that fact affects the
The courts have been loath to take cognizance of trivial complaints
arising out [**2] of the domestic relations--such as master and
apprentice, teacher and pupil, parent and child, husband and wife. Not
because those relations are not subject to the law, but because the evil
of publicity would be greater than the evil involved in the trifles
complained of; and because they ought to be left to family government. On
the civil side of this Court, under our divorce laws, such cases have been
unavoidable and not infrequent. On the criminal side there are but two
cases reported. In one the question was, whether the wife was a competent
witness to prove a battery by the husband upon her, which inflicted
[*455] no great or permanent injury. It was decided that she was not. In
discussing the subject the Court said, that the abstract question of the
husband's right to whip his wife did not arise. S. v. Hussy, Bus.,
123. The other case was one of a slight battery by the husband upon the
wife after gross provocation. He was held not to be punishable. In that
case the Court said, that unless some permanent injury be inflicted, or
there be an excess of violence, or such a degree of cruelty as shows that
it is inflicted to gratify his own bad passions, the law will not
invade [**3] the domestic forum, or go behind the curtain. S. v. Black,
1 Winst. 266. Neither of those cases is like the one before us. The first
case turned upon the competency of the wife as a witness, and in the
second there was a slight battery upon a strong provocation.
In this case no provocation worth the name was proved. The fact found was
that it was "without any provocation except some words which were not
recollected by the witness." The words must have been of the slightest
import to have made no impression on the memory. We must therefore
consider the violence as unprovoked. The question is therefore plainly
presented, whether the court will allow a conviction of the husband for
moderate correction of the wife without provocation.
Our divorce laws do not compel a separation of husband and wife, unless
the conduct of the husband be so cruel as to render the wife's condition
intolerable, or her life burdensome. What sort of conduct on the part of
the husband would be allowed to have that effect, has been repeatedly
considered. And it has not been found easy to lay down any iron rule upon
the subject. In some cases it has been held that actual and repeated
violence to the person [**4] was not sufficient. In others that insults,
indignities and neglect without any actual violence, were quite
sufficient. So much does each case depend upon its peculiar surroundings.
We have sought the aid of the experience and wisdom of other [*456]
times and of other countries.
Blackstone says "that the husband, by the old law, might give the wife
moderate correction, for as he was to answer for her misbehavior, he ought
to have the power to control her; but that in the polite reign of Charles
the Second, this power of correction began to be doubted." 1 Black 444.
Wharton says, that by the ancient common law the husband possessed the
power to chastise his wife; but that the tendency of criminal courts in
the present day is to regard the marital relation as no defense to a
battery. Cr. L., secs. 1259-60. Chancellor Walworth says of such
correction, that it is not authorized by the law of any civilized country;
not indeed meaning that England is not civilized, but referring to the
anomalous relics of barbarism which cleave to her jurisprudence. Bish. M.
& D., 446, n. The old law of moderate correction has been questioned even
in England, and has been repudiated in [**5] Ireland and Scotland. The
old rule is approved in Mississippi, but it has met with but little favor
elsewhere in the United States. Ibid., 485. In looking into the
discussions of the other States we find but little uniformity.
From what has been said it will be seen how much the subject is at sea.
And, probably, it will ever be so: for it will always be influenced by the
habits, manners and condition of every community. Yet it is necessary that
we should lay down something as precise and practical as the nature of the
subject will admit of, for the guidance of our courts.
Our conclusion is that family government is recognized by law as being as
complete in itself as the State government is in itself, and yet
subordinate to it; and that we will not interfere with or attempt to
control it, in favor of either husband or wife, unless in cases where
permanent or malicious injury is inflicted or threatened, [*457] or the
condition of the party is intolerable. For, however great are the evils of
ill temper, quarrels, and even personal conflicts inflicting only
temporary pain, they are not comparable with the evils which would result
from raising the curtain, and exposing to public [**6] curiosity and
criticism, the nursery and the bed chamber. Every household has and must
have, a government of its own, modeled to suit the temper, disposition and
condition of its inmates. Mere ebullitions of passion, impulsive violence,
and temporary pain, affection will soon forget and forgive, and each
member will find excuse for the other in his own frailties. But when
trifles are taken hold of by the public, and the parties are exposed and
disgraced, and each endeavors to justify himself or herself by criminating
the other, that which ought to be forgotten in a day, will be remembered
It is urged in this case that as there was no provocation the violence was
of course excessive and malicious; that every one in whatever relation of
life should be able to purchase immunity from pain, by obedience to
authority and faithfulness in duty. And it is insisted that in S. v.
Pendergrass, 2 D. & B. 365, which was the case of a schoolmistress
whipping a child, that doctrine is laid down. It is true that it is there
said, that the master may be punishable even when he does not transcend
the powers granted; i. e., when he does not inflict permanent
injury, if he grossly abuse [**7] his powers, and use them as a cover for
his malice. But observe, the language is, if he grossly abuse his
powers. So that every one would say at once, there was no cause for it,
and it was purely malicious and cruel. If this be not the rule then every
violence which would amount to an assault upon a stranger, would have to
be investigated to see whether there was any provocation. And that would
contravene [*458] what we have said, that we will punish no case of
trifling importance. If in every such case we are to hunt for the
provocation, how will the proof be supplied? Take the case before us. The
witness said there was no provocation except some slight words. But then
who can tell what significance the trifling words may have had to the
husband? Who can tell what had happened an hour before, and every hour for
a week? To him they may have been sharper than a sword. And so in every
case, it might be impossible for the court to appreciate what might be
offered as an excuse, or no excuse might appear at all, when a complete
justification exists. Or, suppose the provocation could in every case be
known, and the court should undertake to weigh the provocation in every
trifling [**8] family broil, what would be the standard? Suppose a case
coming up to us from a hovel, where neither delicacy of sentiment nor
refinement of manners is appreciated or known. The parties themselves
would be amazed, if they were to be held responsible for rudeness or
trifling violence. What do they care for insults and indignities? In such
cases what end would be gained by investigation or punishment? Take a case
from the middle class, where modesty and purity have their abode, but
nevertheless have not immunity from the frailties of nature, and are
sometimes moved by the mysteries of passion. What could be more harassing
to them, or injurious to society, than to draw a crowd around their
seclusion? Or take a case from the higher ranks, where education and
culture have so refined nature, that a look cuts like a knife, and a word
strikes like a hammer; where the most delicate attention gives pleasure,
and the slightest neglect pain; where an indignity is disgrace and
exposure is ruin. Bring all these cases into court side by side, with the
same offense charged and the same proof made; and what conceivable charge
of the court to the jury would be alike appropriate to all the cases,
except [**9] that they all have [*459] domestic government, which they
have formed for themselves, suited to their own peculiar conditions, and
that those governments are supreme, and from them there is no appeal
except in cases of great importance requiring the strong arm of the law,
and that to those governments they must submit themselves.
It will be observed that the ground upon which we have put this decision
is not that the husband has the right to whip his wife much or
little; but that we will not interfere with family government in trifling
cases. We will no more interfere where the husband whips the wife than
where the wife whips the husband; and yet we would hardly be supposed to
hold that a wife has a right to whip her husband. We will not
inflict upon society the greater evil of raising the curtain upon domestic
privacy, to punish the lesser evil of trifling violence. Two boys under
fourteen years of age fight upon the playground, and yet the courts will
take no notice of it, not for the reason that boys have the right
to fight, but because the interests of society require that they should be
left to the more appropriate discipline of the school room and of home.
It [**10] is not true that boys have a right to fight; nor is it true
that a husband has a right to whip his wife. And if he had, it is not
easily seen how the thumb is the standard of size for the
instrument which he may use, as some of the old authorities have said; and
in deference to which was his Honor's charge. A light blow, or many light
blows, with a stick larger than the thumb, might produce no injury; but a
switch half the size might be so used as to produce death. The standard is
the effect produced, and not the manner of producing it, or the
Because our opinion is not in unison with the decisions of some of the
sister States, or with the philosophy of some very respectable law
writers, and could not be in unison with all, because of their
contrariety--a [*460] decent respect for the opinions of others has
induced us to be very full in stating the reasons for our conclusion.
There is no error.
Let this be certified, etc.