concurring: If the wife acted voluntarily, she ought to be held liable, whether her husband was present or not. If she acted under his compulsion, she ought to be exempt from punishment, not because of the marital -relation, but like any one else acting under compulsion. At common law there was a presumption that when a crime was committed by the wife in the presence of her husband, she acted under compulsion; but that presumption does not comport with Twentieth Century conditions. The contention that a wife has no more intelligence or responsibility than a child is now out of date. No one believes it.
In S. v. Rhodes, 61 N. C., 453, the Court affirmed the ruling below upon a special verdict, that a husband was not guilty where he whipped his wife without provocation “with a switch not larger than his thumb,” and in S. v. Black, 60 N. C., 263, Pearson, C. J., held that a husband could not be convicted of a battery on his wife unless he inflicted permanent injury or had used such excessive violence as to indicate malignity, saying that “the law permits him to use towards his wife such a degree of force as is necessary to control an unruly temper and make her behave herself,” adding that if such matters were taken notice of by the courts it would “encourage insubordination.” In that state of the law, it was proper to hold that any crime committed by the wife in the presence of the husband was presumed to have been committed under his compulsion. That was just and proper when the husband could thrash her at will.
But in S. v. Oliver, 70 N. C., 61, in 1874 (just forty years ago), that doctrine was overruled, Settle, J., saying: “The courts have advanced from that barbarism.” This change in the law was made without any statute, as indeed the overruled decision had been made. "When, however, the Court took this step forward and relieved the wife from this fear, it was but proper to change the ruling which had been based upon it, also without any statute, that if the wife committed a crime in the presence of the husband there was a presumption that it was under his compulsion. In most States, accordingly, and probably in all now, such presumption is denied and held out of place. S. v. Bell, 92 Ga., 49; Smith v. Meyers, 54 Neb., 1; S. v. Hendricks, 32 Kans., 551.
*379The privy examination, required of a married woman when joining her husband in a conveyance-, was based upon the same medieval idea of the right of the husband to control his wife with the lash, if he thought proper. Accordingly it has been abolished in England long since and in all the States of this Union except in North Carolina and five or six others. The requirement for a privy examination has for many years been abolished in all the States that adjoin us — Virginia, Tennessee, Georgia, and South Carolina. As, however, it is statutory, that can only be -repealed by statute, as should have long since been done here, considering the reason for its origin; but the presumption of compulsion of the husband as to crimes committed-by the wife in the presence of her husband having been created solely by judicial decision, should be set aside in the same mode, since we have “advanced from the barbarism”'upon which it was based.
It was as to this very presumption of the wife being under the direction of the husband that in Oliver Twist (ch. 51) Bumble, the Beadle, said: “If the law presumes that, the law is a Ass — a ■idiot.”