Foster v. Withrow

• Decision Date: 06 September 1946
• Docket Number: 15549.
• Citation: 39 S.E.2d 466,201 Ga. 260
• Parties: FOSTER, Sheriff, v. WITHROW.
• Court: Georgia Supreme Court

39 S.E.2d 466

201 Ga. 260

FOSTER, Sheriff, v. WITHROW.

No. 15549.

Supreme Court of Georgia

September 6, 1946

Syllabus by the Court.

A husband may make the oath on which a peace warrant is issued against his wife under the provisions of the Code, § 76-201.

Mrs Beatrice Withrow filed a petition for habeas corpus, alleging that she was being illegally restrained of her liberty by A B. Foster, the sheriff and jailer of Fulton County, by being confined in the common jail of the county. She alleged that the pretense of her restraint was by virtue of a peace warrant issued on the affidavit of her husband, John O Withrow; that solely upon the evidence of her husband she was required by P. B. Haynie, justice of the peace, to give a bond in the sum of $500; that she was unable to give said bond, and was therefore confined in the common jail of said county. She averred that the issuance of the warrant and all proceedings thereunder were illegal, null and void, because John O. Withrow was her legal husband and was not competent to make the affidavit as a basis for the issuance of a peace warrant, or to testify as a witness in the case. In response to the writ of habeas corpus the sheriff alleged that he was holding the petitioner by virtue of a commitment order of P. B. Haynie, justice of the peace, in the peace-warrant proceedings referred to by the petitioner.

On the hearing of the habeas-corpus proceeding the respondent offered to show what evidence had been submitted at the hearing before the justice of the peace, but counsel for the petitioner contended that it was unnecessary, since they claimed that the entire peace-warrant proceeding was void because it had been instituted upon an affidavit by the husband against his wife, and the trial judge declined to hear evidence. It was admitted by the respondent that John O. Withrow was, and is, the husband of Mrs. Beatrice Withrow. The presiding judge sustained the contentions of the petitioner that the statute gives no right to a husband to institute a peace-warrant proceeding against his wife, and discharged the petitioner. The respondent excepted to this ruling as being contrary to law.

E. E. Andrews, Sol. Gen., John H. Hudson, J. Walter LeCraw, and Hudson & LeCraw, all of Atlanta, for plaintiff in error.

Kelley & Hamrick, of Atlanta, for defendant in error.

HEAD Justice (after stating the foregoing facts).

The particular question presented by this case, whether or not a husband can institute a peace-warrant proceeding against his wife, has never been decided in this State. Section 76-201 of the Code, in regard to peace-warrant proceedings, reads as follows: 'Upon the information of any person, under oath, that he is in fear of bodily harm to himself or his family, from another, or of violent injury to his property, and judicial officer authorized to hold a court of inquiry may issue his warrant against such other person, requiring his arrest; and if, upon the return thereof, the court is satisfied, upon hearing the evidence of both parties, that probable cause for such fear exists, he may require the accused to give bond, with good security, to keep the peace as against the person, family, and property of the affiant, and, on failure to give the bond, shall commit him to jail.' (Italics ours.) It will be noted that this section does not exclude by its terms the right of the husband to institute such proceedings against his wife.

The Code, § 76-205, reads as follows: 'A wife may require a bond to keep the peace against her husband.' Counsel for the defendant in error, Mrs. Withrow, contend that it is significant that Chapter 76-2 of the Code contains a provision that a wife may require a bond to keep the peace against her husband, but contains no provision that a husband may require a bond to keep the peace against his wife; that at common law neither spouse had a right to sue the other for a personal tort committed upon him or her by the other, and in the absence of a statute giving the husband the right to require a bond, he would have no authority to sue on the bond; and that the sheriff was without authority to hold her in jail on account of her default in making a bond which the husband alone could sue on in case of a breach, and which suit he could not maintain because the husband cannot sue his wife in such cases.

Under the common law, which is of force this State unless changed by statute, husband and wife became by marriage one person, and the entire legal existence of the woman was completely merged or incorporated in that of the husband. 26 Am.Jur. 632, § 3. Under early common law, the husband had authority in many things, over the person of the wife; she was in a condition of complete dependence and the inferior of her husband in all respects. 26 Am.Jur. 640, § 11. The theory of the common law that the husband and wife are in legal contemplation only one person, and that person the husband, was the basis of the rule that the married woman was incapable of binding herself by contract, of acquiring or disposing of property without the consent of her husband, and of suing or being sued alone. 26 Am.Jur. 645, § 19. This unity in legal contemplation was also the basis of the ruel that husband and wife could not sue each other in tort, or prosecute each other. However, even at common law, husband and wife were criminally liable for crimes against each other. 27 Am.Jur. 243, § 643.

The statement of our statute law in regard to the present civil relationship of husband and wife is found in the Code, § 53-501, which is as follows: 'The husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit, or for the preservation of public order.' The civil rights of the wife were substantially changed by the passage of the act, commonly known as 'The married woman's act,' approved December 13, 1866, giving the wife the right to keep, acquire, and control her separate property. Under such act (Code, § 53-502), this court has held that a husband can maintain a bail-trover action against his wife (Eddleman v. Eddleman, 183 Ga. 766, 189 S.E. 833, 109 A.L.R. 877); that a husband and wife can make some contracts with each other (Bacon v. Bacon, 161 Ga. 978, 979(7), 133 S.E. 512); and that the husband and wife can become copartners in a business enterprise (Burney v. Savannah Grocery Co., 98 Ga. 711, 25 S.E. 915, 58 Am.St. Rep. 342). In Miller v. Straus, 38 Ga.App. 781, 782, 145 S.E. 501, it was stated: 'At common law a husband was liable for the torts of his wife * * *. It is now the law of Georgia that a husband is liable for the torts of his wife only when they are committed by her in the capacity of agent.' In 1943 the General Assembly passed an act, Ga.L.1943, p. 316, Code Ann.Supp. § 53-512, providing that a husband shall not be entitled to, or receive, the salary or wages of his wife, except by her consent. These citations give some indication of how the common law regarding the civil relationship of husband and wife has been changed and modified.

The policy of our statute law in regard to the relationship of husband and wife in criminal proceedings is stated in the Code, § 38-1604, as follows: 'Husband and wife shall not be competent or compellable to give evidence in any criminal proceeding for or against each other, except that either shall be competent, but not compellable, to testify against the other upon the trial for any criminal offense committed, or attempted to have been committed, upon the person of either by the other.'

With this review of the general policy of our law in civil and criminal proceedings in regard to the relationship of husband and wife, we are confronted...