## Facts

- Jesse Black was indicted in Ashe Superior Court for assault and battery on his wife, Tamsey Black.
- The spouses were living apart by private agreement; Tamsey was staying at another person’s house.
- Tamsey angrily confronted Black about whether he had patched another woman’s bonnet; the argument escalated into mutual verbal accusations.
- Black seized Tamsey by the hair, pulled her down to the floor, and held her there for some time.
- Evidence indicated Black struck no blows; Tamsey’s head was hurt and her throat was sore for months, but she was fully recovered by trial and testified he did not choke or attempt to choke her.

## Issues

1. Whether a husband may be convicted of assault and battery for using force against his wife when no permanent injury is inflicted and the conduct is not excessively violent or cruel so as to show malignity or vindictiveness.
2. Whether the spouses’ living separate by agreement affects the husband’s criminal liability for such conduct.

## Decision

- The Supreme Court of North Carolina reversed the conviction.
- The court held a husband cannot be convicted for a battery on his wife unless he inflicts permanent injury or uses excessive violence or cruelty indicating malignity or vindictiveness.
- The court held it made no difference that the spouses were living separate by agreement.
- Applying that standard, the court concluded the evidence did not show permanent injury or the requisite degree of excessive, vindictive cruelty.

## Legal Principles

- Under the governing common-law rule applied by the court, a husband may use force to control his wife’s behavior, and criminal liability attaches only if:
  - permanent injury is inflicted, or
  - violence is excessive, or
  - cruelty indicates the act was done to gratify bad passions (malignity or vindictiveness).
- The court stated it would not intervene in marital disputes meeting only a “moderate correction” characterization, treating public prosecution as generally improper absent the stated thresholds.
- Separation by private agreement does not remove the husband’s asserted privilege or change the criminal-law threshold for liability under this doctrine.

## Conclusion

The court reversed Black’s assault-and-battery conviction, holding that, under its common-law approach, a husband’s use of force against his wife was not criminal absent permanent injury or excessively violent, vindictive cruelty, and that this rule applied even when the couple lived apart by agreement.


State v. Black, 60 N.C. 262 (N.C. 1864)