Hunt v. State

Decision Date27 February 1904
Citation79 S.W. 769,72 Ark. 241
PartiesHUNT v. STATE
CourtArkansas Supreme Court

Appeal from Pulaski Circuit Court, ROBERT J. LEA, Judge.

Affirmed.

Judgment affirmed.

Gus Fulk, for appellant.

Because of the unity of persons a man cannot steal from his wife. 48 Ind. 197; 70 Ind. 317; 43 Tex. 616; 51 Ill. 162; 26 Mich 106; 95 N. Car. 693; 82 Cal. 107; 2 Bish. M. W. 24, 152. The common law upon this question is unchanged by the married women's act of 1875 and article 9, § 7 of Constitution of 1874. 61 Ark. 381, and cases cited; 49 Ark 430; 30 Ark. 17; 56 Ark. 277; 43 Ark. 212. As to whether same worked a repeal by implication see: Black, Int. Laws, 110 112; 34 Ark. 499; 41 Ark. 149; 50 Ark. 132; 51 Ark. 559; 53 Ark. 417. The court erred in permitting the defendant's wife to testify against him. Act No. 81, 1903, p. 141, is not valid, because not signed by the governor or held by him the required number of days to become a law without signature. Const. 1874, Ark., art. 6, § 15; 24 Fla. 293. The court erred in refusing to give instruction No. 2 as asked, and in giving same as modified. Clark, Crim. Law, 286; 49 Ark. 147; 53 N.Y. 111; 67 N.Y. 322; 72 N. Y. St. 253; 1 Whart. Crim. Law, § 964. The court erred in giving the third instruction. 34 Ark. 160; 61 Ark. 15; 62 Ark. 538.

George W. Murphy, Attorney General, for appellee.

OPINION

BUNN, C. J.

This is an indictment for the larceny of the money of his wife by the defendant, with a count for obtaining money under false pretenses, which last, however, was not considered in the trial.

The circumstances of obtaining the wife's money were of the most aggravating character. The wife before their marriage was Miss Maud Nevills, a young woman who had earned the amount of $ 600 as a saleswoman in one of the leading dry goods stores in Little Rock and deposited the same in the German National Bank of this city. The defendant had ascertained this fact in some way and from some source, and paid his addresses to her, and on the 6th of October, 1902, they were married in this city by a pastor of one of its leading churches. It seems that he almost immediately set to work to get hold of this money of his wife, and by one promise and representation and another, mainly to the effect that he would purchase certain business property, or a share in it, with the money thus obtained for her benefit. Being importuned in this way--yielding, doubtless, much to her wifely feelings--she gave him a check for said amount on the German bank; signing her marital name, Maud Hunt, thereto. On being presented in this shape, the German bank officials declined to pay it. The defendant then induced her to sign her maiden name, Maud Nevills, to the check--the name on the bank books--and in this shape presented it, and it was paid. This was late in the afternoon of the 14th of October, 1902, and the defendant, on one of the trains in the evening of the same day, in company with another woman, left the city, and the two were next heard of in the city of Los Angeles, California, a few days afterwards. The constable of Big Rock township, in which the city of Little Rock is situated, hearing of the defendant's whereabouts, telegraphed to the chief of police of Los Angeles, giving a description of the defendant, with his name, and an alias, requesting that he be arrested and held until he himself could reach that city from Little Rock. The defendant was taken in charge by the constable on his arrival in Los Angeles, accordingly, and brought back to Little Rock, where one or more indictments were lodged against him in the first division of the circuit court of Pulaski county. The other woman, Bird Sheppard, who went with the defendant to Los Angeles, was in that city when the defendant was taken in charge there by the constable from Little Rock, but was not permitted to board the same train with the defendant on his return in charge of the constable, but succeeded in doing so at El Paso, Texas, enroute, disembarking from another east-bound train at that place, and testified at the trial.

There was evidence in the case to the effect that the defendant had planned the marriage, etc., as part of the scheme to obtain the money some time before the marriage was consummated, and the circumstances justified the conclusion that the elopement was in fact a permanent desertion of the wife by the defendant. There was no controversy as to the manner of obtaining the money, nor as to the deposit of the same in the bank by the wife.

The defendant asked the trial court to give the following instructions, to-wit:

"(1) If you find from the evidence that the property alleged to have been stolen was at the time the property of Maud Hunt, and that at the time Maud Hunt was the wife of this defendant, then you will find the defendant not guilty, because in this state the husband cannot be guilty of larceny of the property of his wife."

"(2) If you find from the evidence that the wife of defendant, Maud Hunt, placed in the custody of defendant a check for $ 600, to be cashed by him, and the money invested in her name or for her use, and that defendant afterwards cashed said check and converted the said money to his own use, you will find the defendant not guilty of larceny, because that would not be larceny, but embezzlement."

The court refused to give the first of said instructions, and modified the second one by adding:

"But, on the other hand, if you believe from the testimony, beyond a reasonable doubt, that defendant, by fraudulent artifice, practiced upon the prosecuting witness, Maud Hunt, did obtain from her a check for $ 600, and drew the money on it, and thereby obtained and carried away her money, as alleged in the indictment, and had, at the time he so practiced said fraudulent artifices, and obtained and carried away said money, with the felonious intent to steal the same, you will find him guilty of grand larceny, as charged in the first count of the indictment. "

The defendant excepted to the ruling of the court in refusing to give the first of these instructions, and in giving the second only as modified.

The defendant then asked a third instruction, as follows:

"(3) Defendant, J. F. Hunt, moves the court to instruct the jury to bring in a verdict for the defendant of not guilty, on the ground that there is a variance between the allegations of the indictment and the evidence, the indictment alleging the larceny of $ 600, and the evidence showing the property taken to have been a check for $ 600."

The court refused to give this instruction, to which ruling defendant at the time excepted, and exceptions were noted.

The defendant also excepted to the following charge of the court to the jury, to-wit: "You are to exercise your judgment and common sense, neither of which you are to leave behind you when you go into the jury room. Under the laws of the state of Arkansas a married woman may own property absolutely in her own right. A husband in this state may steal the property of his wife. It is for you to determine from the testimony in this case and the law given you whether the defendant has stolen the money as alleged in the indictment. If you find from the evidence beyond a reasonable doubt that he conceived the idea that he would steal the money, which he knew or believed the prosecuting witness had, and, for the purpose of enabling him to accomplish that object, he married her, and used artifices upon her, and thereby deceived her, inducing her to deliver to him the money, having all the time the intention of stealing it, the marriage would be no protection to him, but would rather be an aggravation of the offense."

The defendant excepted to the above remarks, and his exceptions thereto were noted.

From the foregoing abstract it readily appears that there are two main issues of law raised by the instructions, to-wit, whether or not, in the present state of the law on the subject in this state, a husband can be found guilty and punished for the larceny of the wife's property; and whether, under the facts and circumstances of this case, the offense, if offense at all, is that of larceny or of embezzlement, getting money under false pretenses, or of some other of the phases of stealing.

Under the common law a husband could not be found guilty of larceny in respect to his wife's personal property, simply because on their marriage her personality ipso facto became his property, and he could not be found guilty of the larceny of his own property. But of recent years, both in this country and in Great Britain, there has been a great enlargement of a married woman's property rights as against her husband, and in some instances an absolute separation of her rights from those of her husband. But the law on the subject may be yet regarded as in a state of transition from the old to the new principles, and for this reason precedents have not had time to have grown into such magnitude and volume as in most other changes from the common to the statute law rules.

As an illustration either of the extreme conservatism of the courts, or the defects of the statutes wherein they fall short of a complete revolution, we may take the case of Thomas v. Thomas, 51 Ill. 162, cited and much relied on by the appellant's counsel in this case. After some discussion of the question to the husband's larceny of the wife's property, the conclusion of that court was summed up in this statement: "The act of 1861 (Laws of 1861, p. 143), known as the 'Married Woman's Law,' has not so far destroyed the relation of husband and wife as to render either guilty of larceny by converting the property of the other." The charge of larceny in that case was made against the wife, who had deserted her husband, and carried with her...

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