State v. Herndon

• Citation: 27 So.2d 833,158 Fla. 115
• Parties: STATE v. HERNDON.
• Decision Date: 08 November 1946
• Court: Florida Supreme Court

27 So.2d 833

158 Fla. 115

STATE v. HERNDON.

Florida Supreme Court

November 8, 1946

Appeal from Criminal Court of Record, Dade County; Ben C. Willard judge.

J. Tom Watson, Atty. Gen., Reeves Bowen and Shannon Linning, both of Jacksonville, Asst. Attys. Gen., Robert R. Taylor County Solicitor and John C. Wynn, Asst. County Solicitor, both of Miami, for appellant.

Hubbard & Carr, of Miami, for appellee.

TERRELL, Justice.

Appellee was charged with the larceny of the separate property of his wife. A motion to quash the information was granted and the State appealed. Can a man steal from his wife? Is the sole question presented? The fact that this question was more than 100 years reaching our docket affords the old and respected order of Benedicts at least one morsel to crow over.

The motion to quash was granted on the theory that the common-law fiction, the unity of husband and wife, was of force in this State. By that fiction the personalty of the wife is merged into that of the husband and the marriage vested the ownership of the wife's property in the husband. It is contended that such is the law so long as the marital relation exists, unless repealed by statute.

We think this common-law rule has been abrogated in Florida by the Constitution and the statute. Section 1, Article 11, of the Constitution provides that 'all property, real and personal, of a wife owned by her before marriage, or lawfully acquired afterward by gift, devise, bequest, descent, or purchase, shall be her separate property, and the same shall not be liable for the debts of her husband and without her consent given by some instrument in writing executed according to the law respecting conveyances by married women.' Section 708.03, Florida Statutes, 1941, F.S.A authorizes the husband to manage the wife's property but gives him no legal or equitable title in it. Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So. 473.

Chapter 12255, Acts of 1927, Section 708.04, Florida Statutes, 1941, F.S.A authorized the wife to dispose of her personal property and choses in action without the joindure of her husband. Section 708.06, Florida Statutes, 1941, F.S.A., gives the wife absolute control of her wages and earnings and authorizes her to sue and recover them as though she were a single woman. In 1943 the Legislature abrogated every trace of the common-law fiction, the unity of husband and wife, insofar as it relates to her separate personal property. Chapters 21696 and 21932 Sections 708.07, 708.09 and 708.10, 1945 Cumulative Supplement to Florida Statutes 1941, F.S.A., sometimes referred to as the 'Woman's Emancipation Acts.'

In our view, Section 1, Article 11, of the Constitution abrogated the common-law unity of husband and wife insofar as it relates to her separate property, whether it be personalty or realty. True, it is by implication, but it could have no other purpose, and repeal by implication is no less effective than direct repeal. The statutes listed did nothing more than particularize the constitutional provision in relation to her separate personal property. Other statutes give the wife a dower right in her husband's personal and real property which he may not dispose of by will. To say that the husband cannot will his wife's interest in his estate but can turn around and steal it does not click. Beasley v. State, 138 Ind. 552, 38 N.E. 35, 46 Am.St.Rep. 418; Hunt v. State, 72 Ark. 241, 79 S.W. 769, 65 L.R.A. 71, 105 Am.St.rep. 34, 2 Ann.Cas. 33; People v. Graff, 58 Cal.App. 706, 211 P. 829; State v. Koontz, 124 Kan. 216, 217, 257 P. 944, 55 A.L.R. 555; State v. Shaw, 79 Kan. 396, 100 P. 78, 21 L.R.A.,N.S., 27, 131 Am.St.Rep. 298.

It is not to be inferred from what has been said that every case in which one spouse appropriates the property or funds of the other may be classified as larceny. The element of intent must be one of the controlling factors in determining larceny here as elsewhere. The statute (Section 811.01, Florida Statutes 1941, F.S.A.) provides that 'whoever commits larceny by stealing of the property of another * * *' shall be punished, etc. Funds of one spouse used by the other to purchase food and clothing or family necessities would not be construed as larceny, but here the charge is for appropriating $5,000 of the wife's money. In the state of the law pointed out here we think it necessarily follows that even spouses must observe the difference between mine and thine and, if they fail, they do so at their peril.

We do not consider this holding in any sense amenable to the charge of judicial lawmaking. It is quite true that under our scheme of things courts are not clothed with the power to enact laws in the first instance but they do have the power and it it their duty to keep legislative and constitutional enactments ambulatory, likewise it is their duty within the scope of their power to square the law with good morals and to harmonize constitutional and statutory precepts with reason and good conscience, otherwise they may become ridiculous when applied to changing concepts. Interpreting the law in the light of changing concepts is very different from promulgating the law in the first place. A court can no longer interpret the law from the back of an ass; the process is so slow that it overlooks factors that require a different interpretation today from what might have been required yesterday. Before the turn of the century the question in this case might have required a different answer.

In a society like ours, where the wife owns and holds property in her own right, where she can direct the use of her personal property as she pleases, where she can engage in business and pursue a career, it would be contrary to every principle of reason to hold that a husband could ad lib appropriate her property. If the common-law rule was of force, the husband could collect his wife's pay check, he could direct its use, he could appropriate her separate property and direct the course of her career or business if she has one. We think it has not only been abrogated by law, it has been abrogated by custom, the very thing out of which the common law was derived. The only semblance of the common-law fiction that still abides is the requirement that the husband join in conveyances of the wife's separate realty. He conveys no present title in this.

The judgment appealed from is, therefore, reversed.

Reversed.

CHAPMAN, C. J., and THOMAS and ADAMS, JJ., concur.

BROWN and BUFORD JJ., dissent.

BUFORD, Justice (dissenting).

This appeal by the State brings for review an order of the Criminal Court of Record in and for Dade County quashing an information which, eliminating the formal parts, is as follows:

'Robt. R Taylor, County Solicitor for the County of Dade, prosecuting for the State of Florida, in the said County, under oath, information makes that James Robert Herndon of the County of Dade and State of Florida, on the 30th day of March, in the year of our Lord, one thousand nine hundred...