LIABILITY OF HUSBAND FOR SUPPORT OF WIFE WHO HAS ABANDONED THEIR HOME.

Court of Appeals for Miami County.

#### Eugene Shilling v The State of Ohio.

Decided December 30, 1920.

*Husband and Wife*— Malicious *Destruction by Husband of Property Belonging to Wife.*

The conviction of a husband for malicious destruction of property belonging,to his wife may be sustained whore it appears that the hus band and wife at the time of the alleged offense had separated or were in the act- of separating. *State*v. *Phillips,*85 O. S., 317, distinguished.

*Alva W. DeWeese.*for plaintiff in error.

*B. A. Kerr,*Prosecuting Attorney, for defendant in error.

Allread, J.

The plaintiff in error was indicted and convicted for malicious destruction of property, not his own, under Section 12477, G. C.

The indictment conforms to the statute. By the evidence, it appears that the property alleged to have been injured or destroyed was that of the wife of the accused. It also appears that the accused and his wife had separated or were in the act of separating ; that the accused had returned to the former residence *589of himself and wife, where his wife still resided, to obtain his own goods and while there injured and destroyed certain household goods and paraphernalia claimed to have been the separate property o£ the wife.

Upon the evidence as to the wife’s ownership the trial court charged in substance that if the property described in the indictment or part thereof, although purchased by the husband ivas given to the wife with the intention on his part that it should be her property, and such facts were proven beyond a reasonable doubt, then such property or such part thereof should be considered the property of the wife within the meaning of the indictment.

Motions for an instructed verdict of aoquital were made and overruled. Exceptions were taken to such rulings and to the charge of the court. The plaintiff in error was found guilty as to a portion of the property described in the indictment. Motion for a new trial was overruled and the plaintiff in error was sentenced. A petition in error has been filed to review such judgment and sentence.

Counsel for the plaintiff in error relies up *State*v. Phillips, 85 O. S., 317, and counsel for the state relies upon the case of *Pratt*v. *State, 35*O. S., 514.

The opinion of Judge McIlvaine in *Pratt*v. *State,*sustains the charge of the court in the case at bar as to the validity of a gift to the wife, but the question of the guilt of the husband or wife under the general criminal statute for an offense affecting the property of- the other was not involved in that case.

The Phillips case is more directly in point. It was there held:

> “The common law rule that neither husband nor wife can be prosecuted for larceny of the goods of the other, is not abrogated by Sections 7995 to 8004 General Code, defining the rights and liabilities of husband and wife nor by Section 12447, General Code, defining larceny. An intention of the Legislature to abolish an established rule of the common law, and to create a crime where none existed before, must clearly and unmistakably appear. ’ ’

In *Hutchison*v. *State,*8 C.C.(N.S.), 313, the conviction of a *590husband, upon a charge of arson for the burning off-a building owned by the wife, was sustained and motion for leave to file petition in error in the Supreme Court was overruled. It does net. appear that the question of the community of property between the husband and the wife was presented or considered in that ease.

The Phillips case stands as the law of this state and it only remains for this court to consider whether the case at. bar falls within the rule of thePhillips case or is distinguishable. The Phillips case is founded upon the unity of husband and wife and .the community of goods involved in such relationship. Judge Davis sarefully states:

> "The case is easily distinguishable from many of the cases cited in argument, in which there appear schemes of fraud or vio lenee of which marriage is a part or to which it is an incident, or in which the wife of a husband goes away from the other with adulterous intent, the paramour assisting in the asportation and use of the goods of the defrauded spouse, or in which a third person, without adulterous intercourse or intent, assisted in appropriating and using the goods which were charged to have been stolen.; because none of these elements are found in this record.’'

We think that the opinion in the above case shows that it was intended to limit the decision to the facts of that case, and upon full consideration we are of opinion that the decisions should not be extended beyond the case necessarily decided. The reasons for adhering to the common law rule in the Phillips case are thus stated in the concluding paragraph:

> "Moreover, the unity of husband and wife, as recognized in the common lawr, is founded not merely on a community of goods, but upon the recognized obligation of both to the family and to society. The unit of society is not the individual but the family; and whatever tends to undermine the family, by the irrepealable laws of nature will crumble and destroy the foundations of society and the state. So that the peace and sancity of the home and family are the ultimate reason for the common law rule. ”

In the Phillips case the husband and wife were livdng together at the time the. alleged offense was committed. The family rela*591tion, therefore, existed in fact. ' The court merely upheld the common law doctrine as applied to an existing relationship.

In the case at bar the. husband and wife had separated or were in the act of separating. The family unity -was broken up and the property was being divided.

In the case of *Snyder*v. People, 26 Michigan, 106, cited with approval in the Phillips case. Judge Cooley while upholding the common law doctrine of community of property in a ease of arson makes the following .notable distinction:

> “But, in so holding we do not decide that if the family relation is broken up in fact, and the husband and wife are living apart from each other, whether, under articles of separation or not the same exemption from the criminal liability can exist. There is much reason for holding that the dwelling house can be considered that of the husband only while, he makes it such in fact, and that there is no such legal identity as can preclude her husband from being considered, in legal proceedings against him, as the dwelling of another when it is no longer his abode.”

The cases of *State*v. *Wincroft,*76 N. C. 38, and *State v. Matthews,*76 N. C., 42, also cited in the opinion in the Phillips case are expressly based upon the fact that the husband and wife were living together at the time the offense was committed.

The case of *Kopcyznski*v. *State,*137 Wis., is an arson case but directly involves the effect- upon community property, when the husband and wife are living apart. The decision expressly approves the opinion of Judge Cooley in the Snyder case and elaborates upon the exception above quoted. The syllabus is as follows:

> “Neither husband nor wife can be guilty of arson in burning the dwelling house which they jointly occupy as a home regardless of the status of the title - but, it is otherwise where the house is the habitation of one, the other having left it to reside elsewhere, although the marital relations still exist.”

In the opinion after stating that the common law rule of community of property does not apply after a separation it is stated:

> “There is no prejudicial authority to the contrary brought to our attention or which we have been able to discover, nor any *592reason harmonizing with the logic of the common law rule as applied to the concurrence of facts to ivbich only it relates.”

Upon a full consideration of the authorities and the reasons underlying the decisions we can not escape the conclusion that where the husband and wife have separated or are in the act of separating, one can not claim the benefit of the common law doctrine of community of goods to defeat a charge of malicious destruction of the property of the other.

The learned trial judge held that the doctrine of the Phillips case should not be applied because the offense here was not adopted from the common law. This position is not without some force but we express no opinion upon that proposition. The phase which we have discussed is in our judgment decisive.

A marked advance has been made in the emancipation of married women in the last half century. The right to hold and control property is now fully recognized in this state. The Married Women’s Act also provides for a separation and the division of property. The act of the husband as shown by the verdict was of a malicious and unjustifiable character. It would seem shocking and also incredible that in the year of 1920 such an offense should go unpunished. From a consideration of the-entire record we find no prejudicial error and the judgment is. therefore, affirmed.

Ferneding and Kunkle, JJ., concur.