
    Garrison Pratt v. The State of Ohio.
    1. Necessary and suitable clothing furnished by a husband to his wife, or purchased by her with money or means given to her by her husband for that purpose, does not become her separate property within the meaning of the statute concerning the rights and liabilities of married women.
    2. But articles of personal clothing purchased by a wife with her separate money or means are made her separate property by the act of March 30, 1871 (68 Ohio L. 48); and a conviction for the larceny of such goods under an indictment laying the property in the husband can not be sustained.
    3. In proving the value of personal clothing, on a trial for the larceny thereof, the testimony should not be confined to current prices among dealers in second-hand clothing.
    4. Where the separate property of a wife has been stolen from the family residence, such fact alone will not authorize a conviction under an indictment laying the property in the husband.
    Error to the Court of Common Pleas of Greene county.
    The plaintiff in error was convicted at the October term, 1879, of the Court of Common Pleas of Greene county, of the crime of grand larceny. The indictment charged the larceny of certain goods and chattels, the property of John E. Patton, to wit: One shawl of the value of $6.00; one silk dress of the value of $25.00; one dressing gown of the value of $10.00; and one pair of overshoes of the value of $1.00, on the 26th day of October, 1879.
    • The principal errors alleged are, that the verdict was contrary to the evidence, and that the court erred in its charge to the jury. It is also alleged that incompetent testimony was allowed to go to the jury.
    On the trial, John E. Patton, whose property was alleged to have been stolen, was called as a witness, and testified concerning the ownership of the property as follows: “ That the dressing gown belonged to him individually, but that the dress was originally bought by his wife with her own money. That he bad, some years ago, given her a sum of money to do what she pleased with, and reserved to himself no lien or claim of any kind on the property she bought with it, but gave her the money absolutely as her own ; and that with a part of that money she bought the silk dress. She bought the shawl also out of her own individual means. That subsequently to that he gave his wife more money, and with it she (as he was informed) bought the new silk with which the dress was made over, but gave it to her as her own and to do as she pleased with it, and without conditions.”
    Whereupon the court asked the witness whether the property, alleged to have been stolen, was under his control and" in his custody when stolen, to which he replied : “that he understood that he had the custody and control of all goods belonging to his family; that he had the custody and control of the dress and shawl just as he had the custody and control of all property in his house.”
    Upon the issue as to the ownership of the property, the court instructed the jury, that if they should find that the property mentioned in the indictment was stolen by the defendant, and “ was, at the time of the larceny, in the rightful custody and control of the person alleged in the indictment as being the owner thereof, to wit: John E. Patton, then the allegation that it was the property of such person is sufficiently proved.” And refused to charge, as requested by defendant, as follows: 1. “That if they (the jury) find from the testimony in this case, that any of the property mentioned in the indictment was, at the time of the larceny thereof, the property of the wife of the prosecuting witness, John E. Patton, that then said defendant can not be held in this case for the larceny of such property, and in estimating the value of the property stolen. Such of said property, as the evidence shows belonged to said wife, can not be by them taken into account.” 2. “That if the evidence in this case shows that the prosecuting witness, John E. Patton, gave money to his wife, and that she bought the dress named in the indictment therewith, and has, since she so bought it, exercised unlimited control over it as her individual property, only subject to such control or possession as said John F. Patton, the husband, as such, might have by said property being in his house; that then, aud in such ease, the dress in question is not the property of said John F. Patton.”
    It is also alleged for error, that the court permitted testimony to go to the jury as to the value of the'property, other than that based upon knowledge of the current market value of such goods. And it appears that, according to the current market value of second-hand clothing, the testimony offered would not sustain the finding of the jury that the property was worth $35.00.
    
      James A. Cook, for plaintiff in error.
    
      George K. Nash, Attorney-General, and T. L. Magruder, for the state.
   McIlvaine, C. J.

The jury found the value of the property stolen to be $35.00 — the minimum sum constituting grand larceny; and it is quite evident, from the testimony, that this finding included the value of each article mentioned in the indictment. Hence, the conviction was wrong, if any article named was improperly laid as the property of John F. Patton; or, if the actual market value of the goods was the only criterion of their worth.

It is not disputed that, at common law, an indictment for the larceny of a wife’s wearing apparel, laying the property in the husband, was good. It is contended, however, that under our statute the rule is different. The act of March 30, 1871, (68 Ohio L. 48) provides: “Any personal property, including rights in action, belonging to any woman at her marriage, or which may have come to her during coverture by gift, bequest, or inheritance, or by purchase with her separate money or means . . . shall, together with all the income, increase and profits thereof, be and remain her separate property, and under her sole control, and shall not be liable, to be taken by any process of law, for the debts of her husband. This act shall not affect the title of any husband to any personal property reduced to his possession, with the express assent of his wife; provided, that said personal property shall not be deemed to have been reduced to possession by the husband by Iris use, occupancy, care, or protection thereof,” etc.

Notwithstanding the very comprehensive terms of this statute, a majority of the court are of the opinion that they do not embrace the wearing apparel of the wife, furnished by the husband, or purchased hy her with money or means given to her by the husband for that purpose. As to such property, it was not intended by the statute to deprive the husband of all ownership and control; for surely, while the duty of the husband to furnish his wife with necessary and suitable clothing is continued, it was not inteudedto deprive him of the right to control and preserve it. Nor does it make any difference where a wife purchases her apparel with pin money, given to her by her husband to be expended according to her will and pleasure. Of such property, the possession of the wife is the possession of the husband.

It has been held, however, by the Supreme Court of • Indiana, that a statute similar to ours operates as to clothing of the wife acquired otherwise than from the husband, or through his means, so as to invest her with a separate estate therein. Stevens v. The State, 44 Ind. 469. See also, 17 Ala. 415; 119 Mass. 596; 51 Ill. 162; 1 Amer. L. Reg. 434.

And we are inclined to think that there is good gronuds for the distinction. Where the wdfe’s clolhing is furnished by the husband, in discharge of his marital duty toward her, the statute does not divest him of the property contrary to his intentions; while on the other hand, where the properly is otherwise acquired by the wife, th e statute simply prevents a title vesting in him by virtue of his marital relation. Under the statute, the “ gift,” which is declared to be the separate property of the wife, is a voluntary one, as all gifts must be, and does not embrace necessaries which a husband is under a legal duty to furnish his wife.

Erom the testimony in the record before os, it appears that the wife bought the shawl with her “individual means;” whether these means came from the husband or not is not disclosed; but, whether they did or did not, the jury were instructed to find the property in the husband, if they found that the shawl was “in his custody and under his control” at the time of the larceny. And it is quite evident, from the whole record, that the court below was of opinion, and that the jury may have so understood, that the mere fact that the goods were in the dwelling-house of the defendant, wdiere he was living with his wife, put them “ in the custody and under the control” of the husband, so as to vest in him such a special property as would authorize a conviction under the indictment. To say the least, this instruction was misleading. The jury ought to have been told, that if the shawl was not purchased with money given by the husband to his wife, the mere fact that the shawl was stolen from the family residence, did not authorize a finding of the property in the husband, as charged in the indictment.

In regard to the testimony admitted to prove the value of the goods stolen, we think there was no error. As was shown, on the trial below, we can readily perceive that there is no such market for partly-worn clothing, as will show the real value or worth of such articles ; and to confine the testimony to the market rates for second-hand clothing, would, in such cases, substantially close the door to all proof of value. The best rule for ascertaining the value of such property, would be to deduct from the market pi-ice of new goods, of like kind, a reasonable amount for the depreciation in value, caused by the wear and use.

Judgment reversed, and cause remanded for a new trial.  