Stewart v. Com.

• Decision Date: 02 March 1979
• Docket Number: No. 780749,780749
• Citation: 252 S.E.2d 329,219 Va. 887
• Parties: John Lloyd STEWART v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 329

252 S.E.2d 329

219 Va. 887

John Lloyd STEWART v. COMMONWEALTH of Virginia.

Record No. 780749.

Supreme Court of Virginia.

March 2, 1979.

Rodney G. Goggin, Stafford (Moncure & Goggin, Stafford, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

In this appeal, the initial question, one of first impression, is whether a husband may be convicted of grand larceny of his wife's personal property. If we answer this question in the affirmative, we must then determine whether a decree of divorce from bed and board, entered after the date of the criminal offense but prior to trial, has the effect of permitting a wife to testify against her husband, over his objection, as a witness for the Commonwealth.

John Lloyd Stewart was tried by the court below, sitting without a jury, on an indictment charging him with grand larceny, on or about February 18, 1977, of a 1969 Ford station wagon belonging to Everlee B. Stewart, who was then his wife. At trial on July 12, 1977, Stewart objected to Mrs. Stewart testifying as a witness against him. After evidence was presented showing that a divorce from bed and board had been awarded her by decree entered by the trial court on June 6, 1977, Mrs. Stewart was permitted to testify. At the conclusion of the Commonwealth's evidence, Stewart moved to strike the evidence, assigning as one ground that he could not be found guilty of grand larceny of his wife's property because of the common law fiction that husband and wife were one legal entity. The motion was overruled, and, when renewed after all the evidence had been taken, it was again denied. The trial court, finding Stewart guilty as charged, entered final judgment sentencing him to serve twelve months in jail, with all but two months suspended.

We are not concerned with the sufficiency of the evidence, which, viewed in the light most favorable to the Commonwealth, adequately supports a conviction of grand larceny. Indeed, Stewart, testifying in his own defense, admitted that the station wagon belonged to Mrs. Stewart and that he took it without permission.

At common law, marriage merged husband and wife, for the most part, into one legal entity dominated and controlled by the husband; in addition to other rights acquired by him upon marriage, the husband became the owner of all his wife's tangible personal property. See the concurring opinion of Judge Burks in Keister's Adm'r v. Keister's Ex'ors, 123 Va. 157, 176, 96 S.E. 315, 321 (1918). Consequently, as the Commonwealth concedes, at common law a husband could not commit larceny of his wife's property because he could not steal from himself. See Annot., 55 A.L.R. 558 (1928).

More than a century ago, the General Assembly modified the common law strictures which, upon marriage, divested a woman of the right to control her property, by approving on April 4, 1877 "An Act securing to married women, on conditions, all property acquired by them before or after marriage." Acts 1876-77, c. 329. This statute, as amended, sometimes referred to as the Married Woman's Act, is now codified as Code §§ 55-35, et seq.; ¹ it was amended by Acts 1977, c. 76, to eliminate any presumption of ownership of tangible personal property based upon sex. ² Therefore, marriage no longer gives a husband any legal interest in his wife's tangible personal property.

Courts in other jurisdictions have held that the effect of statutes similar to our own, giving married women unfettered control over their own property, is to sever the unity of person existing between spouses and thereby remove the husband's immunity from prosecution for larceny for stealing his wife's personal property. Hunt v. State, 72 Ark. 241, 79 S.W. 769 (1904); State v. Herndon, 158 Fla. 115, 27 So.2d 833 (1946); Beasley v. State, 138 Ind. 552, 38 N.E. 35 (1894); State v. Koontz, 124 Kan. 216, 257 P. 944 (1927); People v. Morton, 308 N.Y. 96, 123 N.E.2d 790 (1954). To the contrary is State v. Phillips, 85 Ohio St. 317, 97 N.E. 976 (1912), where a wife was charged with larceny of her husband's goods. It was held that the common law rule that neither husband nor wife can be prosecuted for larceny of the personal property of the other would not be abrogated by the court, absent clear legislative intent to create such a crime where it did not previously exist. The court in its opinion stressed the importance of preserving the peace and sanctity of the home and family. We find the rationale of this case unpersuasive. The broad provisions of the Virginia Married Woman's Act, giving the wife absolute control over her tangible personal property, must necessarily bring her within the protective shelter of the criminal laws by making any thief who takes and deprives her of possession and use of her property subject to the usual criminal sanctions.

We have heretofore construed the provisions of the Married Woman's Act in other respects. In Edmonds v. Edmonds, 139 Va. 652, 124 S.E. 415 (1924), we held that a wife who had deserted her husband nevertheless could maintain an action of unlawful detainer to dispossess him from her real estate which he occupied contrary to her wishes. The effect of the statute, we held, was to give her full control over her property during coverture so that she could sue her husband as if he were a stranger, dispossess him from her real estate, or prosecute him for criminal trespass. Id. at 658, 124 S.E. at 416-17. And in Vigilant Ins. Co. v. Bennett, 197 Va. 216, 89 S.E.2d 69 (1955), we held that an insurer, subrogee of a husband under his automobile fire insurance policy, could maintain a tort action against the wife for damages resulting from her wrongful destruction of the insured automobile by burning. We stated that under § 55-35 a woman has " . . . full ownership and control of her property . . . " and that "(h)er husband is . . . a stranger to her property and property rights, and she to his." Id. at 223, 89 S.E.2d at 74. Thus, we construed Code §§ 55-35, Et seq. to give each spouse the right to sue the other in tort for damage to property. Id. at 226, 89 S.E.2d at 76. See also Surratt, Adm'r v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971), overruling in part Keister's Adm'r v. Keister's Ex'ors, supra, 123 Va. 157, 96 S.E. 315 (1918), by holding that a wrongful death action could be maintained against a husband for the death of his wife resulting from an automobile accident, and Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195 (1975), extending the exception of Surratt to permit a wrongful death action to be maintained against a husband who had been convicted of the murder of his wife.

In our view, the purpose of the Married Woman's Act would be frustrated if a husband could steal with impunity from his wife, and we hold, therefore, that he may be prosecuted as any other thief for the larceny of her property.

The question remains whether the trial court erred in permitting Mrs. Stewart to testify as a witness in the prosecution of Stewart on the charge of grand larceny. Stewart argues that Mrs. Stewart, called to testify over his objection, was precluded from doing so by the provisions of Code § 19.2-271.2 (Code § 8-288 ³ at the time of trial, recodified without change as Code § 19.2-271.2, effective October 1, 1977 by Acts 1977, c. 624). He maintains that the exception in the statute is limited to offenses by one spouse against the person of the other and does not apply to offenses against property. If so construed, the statute merely codifies the common law rule. See Note, 38 Va.L.Rev. 359, 361 (1952).

Stewart's argument, however, presupposes that Mrs. Stewart occupied the status of his wife at the time of trial. In Stevens v. Commonwealth, 207 Va. 371, 150 S.E.2d 229 (1966), we held that it was reversible error to have required the prosecuting witness to testify against a man charged with malicious wounding since, after the date of...