The indictment against the defendants was for larceny in stealing six bushels of wheat of the goods and chattels of Gideon Speakman in Duck Creek hundred. The proof was that the farm on which the wheat was grown and the barn from which it was stolen, belonged to the wife of Mr. Speakman in her own right, and not to him; but it further appeared from his evidence that he usually sold and disposed of the proceeds and crops of the farm for his own use with her consent, and that she neither exercised, nor claimed to exercise, any control or ownership over them. And on this evidence the objection was made that the property in the wheat stolen should have been laid in the wife, Mrs. Speakman, and not in the husband, Mr. Speakman, as the late statute for the benefit of married women makes all the real estate of a married woman, and its rents, issues and profits her sole and separate property.
The Court, Comegys, C. J., charged the jury,
that but for the evidence in the case that the husband had usually received, sold and disposed of for his own use, the proceeds and crops of the farm with the wife's consent, and that she in fact exercised and claimed to exercise, no actual control or ownership over them, the Court would have been bound to sustain the objection on the ground stated; but if the jury were satisfied from the evidence that such was the case, then the husband, Gideon Speakman, had such a possession of, and property in, the wheat stolen, that the property in it might with propriety be laid in him in the indictment.