Hanon v. State

Ritchie, J., delivered the opinion of the Court. The appellant was indicted under the Act of 1882, chap. 120, for brutally assaulting and heating his wife. At the trial the State offered the alleged wife as a witness, and ■offered to prove by her as follows: “• That she is the wife of the traverser, was married to him four years ago last May; at that time she and traverser were residents of Maryland; they drove together to Wellersburg, Pennsylvania, and were there married by a justice of the peace, and have since lived and cohabited together as man and wife in Maryland; and that the traverser assaulted and heat her as laid in the indictment.” The traverser objected to the evidence on the following grounds: “ 1. Because she is incompetent to testify against him in this case. ¹²⁵ “ 2.

Because if competent for any purpose slie is still incompetent to prove her marriage with traverser. “ 3. The traverser objected to such proof of marriage unless accompanied by evidence that under the law of Pennsylvania a justice of .the peace has power to perform the marriage rite ; (which proof the State did not offer.)” These objections were all overruled by the Court and the testimony admittéd. To this ruling the traverser excepted and took the present appeal. The contention of the traverser, that, the witness was-generally incompetent to testify, is based on the assumption that the Act referred to established a new and statutory offence distinct from that of assault and battery as known to the common law, and that hence the witness falls within the general rule that a wife cannot testify for or against her husband in a criminal case.

But even if the statute creates a new offence, it does not. necessarily follow that the wife could not be a witness. The principle of necessity, by which under the common law a wife is permitted to testify against her husband on a charge affecting her liberty or person, would seem equally applicable to a statute designed to protect her in either of these respects. The object sought by the present statute is to shield her from the personal violence of her husband,, and the danger of defeating this object and the difficulty in supplying the proof, were the wife excluded as a witness, would be the same as at common law. In Roscoe’s Criminal Evidence, page 125, under the head of “ Witnesses,” sub-title “ Oases of Personal Injury,” it is stated: “ Upon an indictment under the repealed statute of 3 Henry 7, c. 2 for taking away and marrying a woman contrary to her will, she was a competent witness against her husband de facto and also, that, “Upon an indictment under Lord Ellenborough’s Act against a man for shooting at his wife, the latter was admitted as a witness by Mr. Baron Gr arrow after consulting Hqlroyd, J., upon the ground of the necessity of the case.”' ¹²⁶ But it is unnecessary to decide whether the common law exception to a wife’s incompetency as a witness would, upon sound reasoning, extend to the Act of 1882, did it create a new and distinct offence; as we are clearly of •opinion that this statute does not have this effect, but simply attaches a new penalty to a well-known common law misdemeanor, when attended with certain circumstances of aggravation.

The only difference, virtually, between the statute and the common law in relation to assault and battery, is, that while under the latter the beating of a wife, and in a brutal manner, would be circumstances of aggravation which the Judge in meting out the common law punishment of imprisonment would take into consideration ;'by the statute the Judge is vested with the discretion to impose corporal chastisement instead of, or in addition to, the imprisonment, when the offence is thus aggravated. The mere affixing by statute of a penalty different from that at common law, or adjusting it to specified circumstances of aggravation or mitigation, where the crime or misdemeanor is in its nature susceptible of such variations, without losing its essential character, is not the creation of a distinct offence. As an illustration of this, it has been decided that our Act of Assembly of 1809, •chap. 138, in dividing the common law crime of murder into first and second degrees, so distinguished from the circumstances accompanying the homicide, and attaching corresponding penalties, did not create a new offence. Weighorst vs. State, 7 Md., 451; Davis vs. State, 39 Md., 375 .

The statute of 1882 falls within the principle of these decisions in respect of the point under consideration. The offence contemplated by the Act of 1882 being essentially that of assault and battery at common law, the •exceptional capacity of the wife to be a witness against her husband is preserved in proceeding under the statute. But while the statute does not create a new offence, an ¹²⁷ indictment thereon falls within the rule, recognized in the ■case referred to in 39 Md., that, “when a statute creates •an offence or increases the punishment of an offence, the indictment founded upon such an offence must aver the ■circumstances which constitute the offence or increase the punishment.” As a new and severer punishment, namely, that of whipping, is provided by the statute, where the beating is brutal, and inflicted by a husband on his