#### STATE vs. WILLIAM HUSSEY.

The wife is not a competent witness against her husband, to prove a battery on her person by him, except in case where a lasting injury is inflicted, or threatened to be inflicted upon her.

The defendant was tried and convicted before his Honor, Judge Dick, at Guilford on the last Fall Circuit, upon an indictment for an assault and battery on Beulah Hussey, his wife.

The wife was sworn as a witness on the trial, and testified to acts of violence on the part of the defendant, by kicking her on the leg and striking her on the head and side with his fist, whereby she suffered considerable pain, but no lasting or permanent injury. And she further stated, that she gave the defendant no provocation for his violence.

Two points were made by the defendant’s counsel: 1. That the husband had a right to give to the wife moderate chastisement, of which he is the j udge; and he is not criminally responsible unless permanent injury is inflicted, or the chastisement is carried to such extent as to threaten permanent injury. 2. That the ■wife was not a competent witness to prove that she gave no provocation at tfie time of the alleged batteiy. .

His Honor admitted the evidence, and instructed the jury, that by law the husband had a right to give his wife moderate correction, if it appears to be necessary to enforce obedience to his lawful command, but no right to beat her from mere wantonness and wickedness. In this case, if they believe the witness, the several acts of violence were inflicted without cause, and the defendant was therefore guilty. The jury found the defendant guilty, and judgment having been rendered upon the verdict, he appealed.

Miller and Morehead, for the defendant, argued:

1. Husband has the right to give his wife’ moderate correction or chastisement. 2 Black, 444. For extent to which he can *124carry such correction vide Writ de securitate pads, which the wife has against the husband. (Fitzherbertfs Nat. Br.) Also the Writ of supplicavit, issuing' from a Court of chancery. (2 Mop. on Hus. and wife 318, 319, 320.)

2. If the wife commit theft, burglary, assault and battery, &c., by the coercion of her husband, or even in his company, she is not guilty of crime, being considered as acting under compulsion, and not of her own will. (4 Black. 29, Commonwealth v. Neal & wife, 10 Mass. R. 152, Rex. v. Knight and wife, (notes thereto) 11 E. C. L. R. 335, Rex v. Squire and wife, 4 Petersdorf Ab. 107.) This principle does not extend to children or apprentices. They are not excused even when committing crime under the coimnand of the parent or master. (4 Black. 29; 1 Russ on Crimes, 15.) From which it might be inferred that the legal control of the husband over the wife is greater than that of the master over the apprentice or the parent over the child. But take the rule to be as laid down by Blackstone, that the husband has the right “ to restrain the wife by domestic chastisement, in the same moderation that a man is allowed to correct his apprentice or children,” (Black. 444,) how far can the parent, teacher or master go ? Seo 1 Russell on Crimes 461. The rule is also laid down with much clearness, Judge Gaston, in the case of State Pendergass, 2 Dev. & Bat. 365, that u unless the jury can clearly infer from the evidence that the chastisement inflicted, produced or was calculated to produce lasting injury it is their duty to acquit.”

It is contended, therefore, that the parent, master, or teacher has a right to inflict chastisement on his child, apprentice or pupil, within the point tohere lasting injury is begun or threatened, without being answerable in a criminal prosecution, for an assault and battery. Until that point is reached he is the sole judge as well of the reason or necessity for chastisement, as the extent to which it should be carried. If the rule be the same in the case of husband and wife, there was error in the charge of his Honor. No lasting injury was produced — nor was the punishment inflict.ed calculated to produce it.

3. The wife cannot be a witness to show provocation, or the *125want of it. The general rule of law is — the wife cannot be a witness for or against the husband. Greenleaf onEv. 254, 234. She is not admitted'against him in cases of treason. Ibid, sec. 345. There are exceptions to the general rule. Gb'eenl. sec. 343. But see Sedgioick v. Watkins, 1 Ves. 49.

It is submitted that to allow the wife to be a witness, either for or against the husband, not only as to the fact of the assault and battery on her person, and the character of the injury inflicted, but also as to the causes or provocations which produced it, however immediate, remote or often recurring, would let in all the evils which the general rule of law was intended to prevent, u impairing thereby, the great principles which protect the sanctities of the marriage relation, and which are essential to the happiness of social life.”

4. It is also insisted that here the wife was improperly made the judge of the provocation. She should have been confined to the statement of facts, occurring at the time, and not permitted to give an opinion on her own conduct.

Attorney General, for the State.

Nash, C. J.

The case does not call for any expression of opinion upon the abstract question, whether a husband has a right in law to strike his wife. The wife here was received as a witness against her husband, and the question of her competency tying at the threshold of the case, requires first to be decided. It is a general rule that parties are excluded from being witnesses for themselves, and this applies to the relation of husband and Avife — neither of them being admissibble as a Avitness either in a civil or criminal case in Avhich the other is a party. This rule has been adopted partly on the ground of identity of interest and partly on principles of public policy, which lie at the basis of civil society. A contrary rule Avould break doAvn or weaken the great principles which protect the sanctities of the marriage state. The confidence existing between husband and Avife should be treasured, and rendered inviolate. To the general rule hoAvever, there are some exceptions allowed from the necessity of the case, partly for the protection of the wife in her life and liberty, and partly *126for the salce of public justice. But this necessity is described by Lord Mansfield in Bently v. Cooke, 3d Doug. 422 — “not to “ be a general necessity, as when no other witness can be had, “ but a particular necessity, as when the wife would otherwise be “ exposed, without remedy, to a personal injury.” In Rex v. the inhabitants of Cliviger, 2 T. R. 263, the rule was laid down that the wife was, in every case, incompetent to give evidence tending to criminate her husband; and in Rex v. All saints, 6th Moo. & S. 194, Lord Ellenbohough remarks, that the rule in that case was laid down somewhat too largely — but in Rex v. Bathwick, 2d B. & Aid. 639-47, the rule in Cliviger’’s case was adopted as undoubtedly true, in the case of a direct charge and proceeding against him for any offence not feloniously affecting her. It is not denied that the wife may exhibit articles of the peace against her husband, and that from a particular necessity, no one else cantalee the necessary oath; but the question here is, can she be admitted to testify against, him for an ordinary assault and battery upon her? and by ordinary, is meant a battery which neither threatened her life, nor any great bodily harm. Mr. Greenleaf, 1st vol. see. 343, in enumerating the cases in which a wife may be examined as a witness, states some which are for felonies, or acts leading to felonies, and refers to one for assault and battery on her. For this he refers to Agire’s case, 1st Strange 633, where it is reported in about as many words as Mr. Greenleaf has used in stating the principle. Nothing is said of the facts or the nature and extent of the assault and battery, and for it is only cited Lord Audley’s case, which was for an atrocious felony upon her person. Now it is utterly impossible that the painciple can be true, as stated. We know that a slap on the cheek, let it be as light as it may, indeed any touching of the person of another in a rude or angjy manner — is in law an assault and battery. In the nature of things it cannot apply to persons in the marriage state, it would break down the great principle of mutual confidence and dependence; throw open the bedroom to the gaze of the public; and spread discord and misery, contention and strife, where peace and concord ought to reign. It must be remembered that rules of law are intended to act in all *127classes of society. In Sedgwick v. Watkins, 1st Yes. Sen. 49— which was an application of a wife for a ne exeat against her husband; Lord Thurlow said she may make application for it, but the question is, by what evidence she can support it; and whether her affidavit can be read to affect her husband ? He admits that for security of the peace, ex necessitate rei, she may make an affidavit against her husband, but canno'd be a witness to sustain an indictment, and closes by observing — “ I have always taken it to be a rule, that a wife never can be a witness against “ her husband, except in the case I have alluded to. ” The rule, as we gather it from authority and reasop, is, that a wife may be a witness against her husband for felonies perpetrated, or attempted to be perpetrated on her, and we would say for an assault and battery which inflicted or threatened a lasting injury or great bodily harm; but in all cases of a minor grade she is not. In this case, there is no pretence that any lasting injury was inflicted; on the contrary, the case states that the injury was temporary. Her testimony being incompetent, the judgment is reversed, and a venire de novo awarded

Pee. Curiam. Judgment reversed, and venire de novo awarded.