Before pleading, the defendant, through his attorneys, moved to quash the bill of indictment for the reason that no offense was charged, it not being criminal offense for a husband to slander his wife. His Honor sustained the motion, quashed the bill of indictment, and the State appealed.

BROWN, J.

It is admitted by the learned counsel for the State that this Court has long since decided that a husband is not indictable for slandering his wife under our statute, S. v. Edens, 95 N.C. 693, and we are asked to overrule that decision.

It was in 1886 that the eminent jurists who occupied this bench at that time held, unanimously, that our statutory enactment creating the offense of slandering an innocent woman does not embrace those persons who sustain marital relations to each other, and that its operation is confined to those not thus related.

In speaking of the long established policy of the law as bearing upon the married relation, Smith, C. J., eloquently says: "In other cases, short of these extremes, it drops the curtain upon scenes of domestic life, preferring not to take cognizance of what transpires within that circle, to the exposure of them in a public prosecution. It presumes that acts of wrong committed in passion will be followed by contrition and atonement in a cooler moment, and forgiveness will blot it out of memory. So, too, the harsh and cruel word that sends a pang to the sensitive heart may be recalled, and relations that should never have been interrupted by an unkind or unwarranted expression again restored. The unnumbered mischiefs that might flow from making an unguarded and false imputation upon the wife's chastity the subject of a criminal proceeding are so obvious that we cannot think the General Assembly intended such a possible result."

This decision, made by a court composed of sages of the law who were as chivalrous as they were pure and learned, has become a part (487) of the statute, and has been lived up to and acted upon since 1886. For twenty-two years the General Assembly has acquiesced in such construction and thereby approved it. It is a well known fact that the last Legislature voted down a bill to change it. The decision has been cited as authority and with approval in subsequent cases in this Court. S. v. Lewis, 107 N.C. 972; S. v. Haddock, 109 N.C. 873.

Whatever might be our impressions were the matter res integra, we deem it important in the construction of statutes to adhere to what has already been adjudged. The judicial interpretation becomes as it were a part of the statute itself. This view of the case is presented very strongly by Walker, J., in Hill v. R. R., 143 N.C. 574; Ashe v. Gray, 90 N.C. 296; Lockhart v. Bell, 90 N.C. 500; Wells's Res Adjudicata, pp. 542, 543.

The judgment of our predecessors has abundant support in the decisions of other courts and in the text-books. Mr. McLean, an approved writer on Criminal Law, sec. 1045, says: "A husband is not indictable for defaming his wife, and it has been so held in England, notwithstanding the Married Woman's Act." In support of the text the author cites the decision of this Court in S. v. Edens, supra.

There is a statute of New York, as broad and comprehensive as the one construed in the Edens case, which says: "Any married woman may maintain an action in her own name for damages against any person, for an injury to her person and character, the same as if she were sole." It was insisted in Freethy v. Freethy, 42 Barb. N. Y., 641, that the words, "any person," are so comprehensive as to include the husband, and give the right to the plaintiff to maintain an action for (488) slander against the defendant, her husband. The New York Court held that the Legislature did not intend by so general a statute to change the common law rule as to the disability of husband and wife to sue each other, saying that the evils to be remedied "are but trifling when compared with such as would result from the litigation between them of suits like the one in question. When the Legislature intends to make such a striking innovation of the rules of the common law, and so much opposed to public policy and the peace and happiness of the conjugal relation, as would be the case if husband and wife were permitted to sue each other for alleged wrongs to character, it should use such language as will make it clearly manifest; and not leave it to the construction of the courts."

It is a rule of construction, generally recognized, that statutes should receive such interpretation as is agreeable to the rules of the common law in cases of that nature, for statutes are not presumed to alter the common law further than the act expressly declares. Bac. Abr., p. 243. It is not enough that a case be within the letter of the statute, if it be not also within the intention and spirit of it. Numerous cases can be found in the books where an act came within the letter of the statute, but was declared not to be within its intention. 2 Bac. Abr., 249; 9 Bac. Abr., 250; 2 Inst., 384; People v. Ins. Co., 15 John., 358; White v. Wager, 25 N.Y., 328. It would be a legal anomaly to hold that the husband may be convicted and punished for slandering his wife, and that she could not sue and recover damages for the wrong done her.

The Married Woman's Act enacted by the English Parliament in 1882, 45 and 46 Vict. C., sec. 12, gives to a wife remedies by criminal proceedings for her protection, and the protection of her property. She can also sue in her own name for torts and wrongs done to her. Yet, the Queen's Bench held that a wife could not before, and (489) cannot since the aforesaid act, take out criminal proceedings against her husband for defamatory libel. The Queen v. Lord Mayor, 16 Q. B. Div., L.R., 772.

From the earliest times it has been held that the wife cannot be convicted for stealing her husband's goods, the reason being that husband and wife were considered but as one person in law. 1 Hale P. C., 514. Upon this subject the Encyclopedia lays it down, that the common law unity of husband and wife operates equally to preclude either spouse from successfully maintaining actions for tort, such as slander and libel against the other. 15 A. E., 857.

By statutes in many states the right is given to husband and wife to sue each other for injuries to property or rights growing out of property, but in such states no adjudications can be found, so far as we are advised, which authorize such actions for slander, libel and other similar torts. 15A. E., 858.

There is another very cogent reason why the construction given this statute in the Edens case should be adhered to, and that is because the wife, whose character is at stake, cannot be permitted to testify against her husband upon the trial of the indictment. It being an indictment against the husband, he has the right to offer himself as a witness in his own defense, and under oath justify the charges he has made, and he could testify to facts that would blast the wife's character if believed. He could testify that he saw her in the act of adultery and the wife's lips are closed, for she is legally incompetent to testify against her husband when indicted for crime, except when charged with an assault and battery on her person, or for abandoning her or for neglecting to support her. Revisal, sec. 1635. There are no other exceptions to her statutory incompetency. This general disability of those occupying the marital relation to testify against each other is founded on the (490) soundest principles of public policy, and has been recognized from the earliest times since the case of Lord Audley, 3 How. State Trials, 402.

So it is well known to the General Assembly that in indictments under the statute we are considering the husband can testify in his own defense, but the wife may not be called to contradict him, or to defend her own honor. In an action for divorce neither husband or wife is permitted to testify concerning the adultery of the other, but under this indictment the husband can testify in his own behalf and prove adultery upon the part of his wife, while her mouth is sealed by the law. It is inconceivable that the General Assembly could leave the wife in any such cruel position while undertaking to legislate for her protection.

If the Legislature had intended to include husband and wife within the purview of this statute, doubtless it would have amended the law so as to make the wife a competent witness, as in the other cases, to prove the crime committed against her; not only to contradict her husband, but also to prove her own virtue and continence, an essential fact incumbent upon the State to affirmatively prove before a conviction can be had. Without the evidence of the wife the prosecution must be doomed to failure. Her evidence could scarcely be supplied.

We think it best to adhere to the judgment of our predecessors, and leave any change to be made by the Legislature, if in its wisdom any is deemed desirable.

If by legislation this statute should be extended so as to embrace those who are husband and wife, the lawmaking power can and will do the latter the plain justice to open the door, that she may be a competent witness in a proceeding where her honor is at stake. Three justices having voted to quash the indictment, the judgment of the Superior Court is

Affirmed.