This appeal by the State brings for review an order of the Criminal Court of Record in and for Dade County quashing an information which, eliminating the formal parts, is as follows:

"ROBT. R. TAYLOR, County Solicitor for the County of Dade, prosecuting for the State of Florida, in the said County, under oath, information makes that JAMES ROBERT HERNDON of the County of Dade and State of Florida, on the 30th day of March, in the year of our Lord, one thousand nine hundred and forty-five, in the County and State aforesaid, did then and there unlawfully and feloniously take, steal and carry Five Thousand Dollars, lawful money of the United States of America, the separate property of Ethel R. Herndon, the wife of the said James Robert Herndon, a further and *Page 119 more particular description of said money being to the County Solicitor unknown, being then and there of the value of more than FIFTY (50.00) DOLLARS, good and lawful money of the United States of America."

It is well recognized that at common law ordinarily one spouse cannot commit larceny of the other's goods. See 57 Am. Dec. 823 and cases there cited; 32 Am. Juris. page 957, Sec. 54.

We have no statute in this state which in terms abridges the common law in this regard. It appears that this inhibition continues as long as the husband and wife live together as such but it vanishes when the marriage relation has been either expressly or by direct indication abandoned. See Annotation 55 A.L.R. 558. If under the law of this State either spouse can be guilty of larceny from the other it is because of the statutes which we have adopted concerning the property rights of married women. See Chapter 708. Fla. Statutes 1941 and supplements thereto. The authorities are in conflict on the question as to whether such statutes change the common law rule in this regard. Some courts take the view that the effect of the statutes giving the wife exclusive control and authority over her personal property severs the unity of person and community of property existing between the husband and wife and that therefore the husband may be subject to prosecution for larceny for stealing the wife's goods or the wife may be likewise prosecuted for stealing the husband's property. Other courts have taken the view that the common law rule has not been changed by such legislative acts because these acts do not destroy the unity of person. See State of Ohio v. Phillips, 85 Ohio State. 317, 97 N.E. 976, 40 L.R.A. (N.S.) 142; Thomas v. Thomas 51 Ill. 162; Walker v. Reany 36 Pa. State, 410; State v. Winecroft, 76 N.C. 38; State v. Mathews, 76 N.C. 41; Snyder v. People 26 Mich. 106, 12 Am. Rep. 302.

We are persuaded to concur in the view expressed in these opinions and in this we are controlled very largely by the fact that under the common law the inhibition applied to husband and wife. If we should hold that the married womens property statute has the effect of raising the ban so that the *Page 120 husband may be prosecuted for larceny for stealing the wife's property, it appears that there is no reason to assume that the law has been abrogated so that the wife may be prosecuted for larceny for stealing the husband's property. This is necessarily true because the rights of the husband in the control and management of his separate property have not been changed by the married womens property statute. Nor are there any other statutes in this state which change the common law rule that the wife may not be prosecuted for larceny for stealing the husband's goods. We have observed that some of the courts which have held the married women's property acts have changed the common law so that husbands may be prosecuted for larceny for stealing the wife's goods have specifically declined to say whether or not the effect of the statute would make the wife liable to prosecution for larceny for stealing the husband's goods on the ground that that question was not then presented. See State of Louisiana v. Hogg alias Hall,126 La. 1053, 53 So. 225, 29 L.R.A. (N.S.) 830. That question is not presented here but it is pertinent to the matter which we have under discussion because if the effect of these married women's property statutes is to abolish the unity of person it must abolish that union as to both parties. The common law rule that one spouse may not be guilty of larceny by stealing the property of the other is based principally on the fiction of unity of person existing between the spouses. It has been said that this fiction, recognized in law as fact, was that the spouses are one and the same person and that the person is the husband. Probably no one could be found today who would have the termerity to make the latter assertion. We may add that we find some evidence that it was not the legislative intent to abolish entirely the doctrine of unity of person and community of property between spouses reflected in Sec. 708.10, 1945 Cumulative Supplement, Florida Statutes, 1941, which is as follows:

"708.10. Same; construction of law. — This law shall not be construed as (1) relieving a husband from any duty of supporting and maintaining his wife and children; (2) abolishing estates by the entireties or any of the incidents thereof; (3) abolishing dower or any of the incidents thereof; (4) *Page 121 changing the rights of either husband or wife to participate in the distribution of the estate of the other upon his death, as may now or hereafter be provided by law; (5) dispensing with the joinder of husband and wife in conveying or mortgaging homestead property."

The fiction (if it be a fiction) of unity of person being consequent upon a man and a woman entering into the estate of matrimony is the foundation of the marriage structure and the corner-stone of its spiritual concept. If and when we shall have abolished that element of the most sacred relation known to the civilized world we shall then be ready to abandon the injunction, "Whom God hath joined together, let no man put asunder," and to reduce the marriage ceremony to a cold civil contract, stripped of all its sacred implications, shorn of all its involvement of the soul; unsanctioned as an ordinance of God and constituting a mere formality prerequisite to legal cohabitation.

If the law is to be changed in this regard, such change is the responsibility of the legislature which we shall not assume to usurp.