State v. Jones

• Decision Date: 21 March 1903
• Citation: 43 S.E. 939,132 N.C. 1043
• Parties: STATE v. JONES.
• Court: North Carolina Supreme Court

43 S.E. 939

132 N.C. 1043

STATE v. JONES.

Supreme Court of North Carolina

March 21, 1903

Appeal from Superior Court, Wake County; Bryan, Judge.

Albert Jones was found not guilty of criminal trespass, and the state appeals. Affirmed.

A husband cannot be convicted of criminal trespass on his wife's lands.

Clark C.J., dissenting.

The Attorney General, for the State.

MONTGOMERY J.

The wife of the defendant, who was the owner of the premises on which they resided up to November, 1892, left on that day and has remained off ever since, having good grounds for believing that the defendant had been for some time living in adultery with a woman in the neighborhood. She had, before she left her home, urged upon the defendant to leave her premises, that she might live there alone, and he refused to do so. The defendant had been living on the land all the while, although, shortly after having left herself, she ordered the defendant to leave, and not to enter again. Upon his frequent ingress and egress and refusal to leave, a warrant was issued for entering upon the land after being forbidden. He was found guilty in the court of a justice of the peace, and fined. From that judgment he appealed to the superior court. The above facts were found by a special verdict in the superior court, and upon them the court adjudged that the defendant was not guilty.

We can see no error in the judgment. Notwithstanding the fact that the wife may have good grounds to suspect the defendant husband of immoral conduct, they are still, in the eye of the law, husband and wife, and there has been no separation by a decree for a divorce a mensa et thoro. This case presents the novel feature of a wife seeking a judicial separation from her husband by the criminal action of trespass. In Manning v. Manning, 79 N.C. 293, 28 Am. Rep. 324 the husband and wife occupied the same house and farm, the property of the wife, and the action by the wife against the husband was an action of ejectment. He had taken possession of the property, was using it as his own, and had been appropriating the rents and profits to his own use, without applying any part of the same to the wife's comfort and support. This court held that the wife was entitled to an order for the possession of the property, but that the husband could not be ejected from the premises, for that was "a proposition fraught, as I conceive, with the most dangerous consequences to society, to wit, that a wife may, under the forms and with the sanction of law, at her own will, and without cause, eject her husband from her dwelling and society because the house is her separate property. I can never agree that either husband or wife can, without committing those offenses which the law designates as causes of divorce or separation, invoke the aid of the courts to render a judgment, the unavoidable consequences of which would be a separation of man and wife. Nothing less than an express or positive statute to that effect can control or destroy the highest of all the obligations imposed in the marriage relation--that man and wife shall live together. Any decision of the courts, the direct or incidental result of which is to destroy the sanctity of marriage in that particular, can but weaken and undermine the surest foundations upon which the structure of society, and, through it, of political institutions, rest, and command our confidence." The court further said: "By the matrimonial contract the husband and wife are to live together, and the law, divine as well as human, has, whether wisely or unwisely, made him the ruler of the household; and the well-understood and well-defined legal duties, relations, and obligations of the marriage compact cannot be abridged or changed at the will of either, or otherwise or for other causes than are prescribed in the statute in relation to divorce and alimony." In that case the parties were occupying together the premises; but does the fact in the present case that the wife has abandoned her husband and their home, and made her residence elsewhere, alter the principle involved in the case from which we have just quoted? Are not the purpose and effect of the present action, if successful, the separation of the husband and the wife and the destruction of the home relations? Can it be that a wife may, whenever she sees fit, leave her home, and take up her residence in another place, refuse the society of her husband, and indict him as a trespasser if he puts his foot upon the wife's abandoned property, the place he has made his home? Have we reached that stage of social progress when the sacred relation of husband and wife and the hallowed influences of the home are converted into mere traditions without power to influence, and dreams instead of relations? It would seem so to us if we were to hold that the indictment in this case was lawful and proper.

If the husband should commit any of those acts which the law points out as causes of divorce, the wife may effect a separation from him under the chapter of the Code on divorce and alimony, and only in that way. The case of Taylor v. Taylor, 112 N.C. 134, 16 S.E. 1019, does not have application to the facts of this case. There the plaintiff, who was the wife of the defendant, brought an action against him to recover possession of her land, and for an injunction to restrain him from interfering with her exclusive control and management of her property. The court said, "The plaintiff is entitled to the possession of the land, exclusive of the husband, until a reconciliation has been effected." But the parties had been divorced a mensa et thoro.

No error.

CLARK C.J. (dissenting).

This is a criminal action begun before a justice of the peace against the defendant for entering upon a certain tract of land, the property of his wife, after being forbidden by her so to do and without license therefor. Code 1883, § 1120. Found guilty, and fined $1 and costs, the defendant appealed to the superior court, where the jury found, in a special verdict, that the wife of the defendant, having good grounds to believe that her husband was and had been for some months living in adultery with a woman in the neighborhood, urged him to leave the premises, that she might live alone. This he refused to do, whereupon she left, and has remained away ever since. She then ordered her husband to leave that tract of land, and not enter on it again, but he refused to observe this order, and has since that time repeatedly been off of said land, but has always returned thereon, living there continuously, contrary to her will. Upon these facts it was error in his honor to hold that the defendant was not guilty. The Constitution, art. 10, § 6, provides that the property of any female, whether acquired before or after marriage, "shall be and remain the sole and separate property of such female," the only restriction being the requirement of the written assent of the husband to conveyances by her. In Tiddy v. Graves, 126 N. C., at page 622, 36 S.E. 128, it was held, quoting and approving the exact language of Merrimon, C.J., in Walker v. Long, 109 N.C. 510, 14 S.E. 299, as follows: "This provision is very broad, comprehensive, and thorough in its terms, meaning, and purpose, and plainly gives and secures to the wife the complete ownership and control of her property as if she were unmarried, except in the single instance of conveying it. She must convey with the assent of the husband. It clearly excludes the ownership of the husband as such, and sweeps away the common-law right or estate he might at one time have had as tenant by the curtesy initiate." Since the Constitution, as has thus been held uniformly, secures to the wife the "complete ownership and control of her property as if she were unmarried," and has "swept away any common-law right or estate the husband might at one time have had as tenant by the curtesy initiate," it follows that the defendant had no more right to enter upon his wife's land, qua land, and continue to reside there, after being forbidden to do so, than if she were unmarried. This court has never trenched upon the above plain provision of the Constitution, so as to give him a right to occupy her realty, and use it for his residence, in her permanent absence therefrom, contrary to her prohibition. His occupation of the dwelling and continuous use of the premises might well prevent her getting a tenant or exercising the complete ownership and control guarantied to her by the Constitution. All the court has ever held is that, when the wife is residing upon the premises, the husband has the right of ingress to her and egress because of his marital right to enjoy her society. Manning v. Manning, 79 N.C. 293, 28 Am. Rep. 324, which is based throughout on this...