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§ 34. Presumption of Coercion —To what Crimes Applicable.—It is held that the presumption of coercion applies to both misdemeanors and felonies1 to robbery with violence.2

In Queen v. Buncombe3 Mary Buncombe was indicted for assaulting and robing one W. Boley.

Marshman, in opening the case for the prosecution stated that it appeared that the offense was committed by the prisoner in the presence of her husband who had absconded.

COLERIDGE, J. Can you proceed with this case? If the offense was committed in the presence of her husband how can she be liable?

Marshman contended that the wife was liable for an offense committed in the presence of her husband where violence is used: citing the following passage from Russell on Crimes, in reference to femes covert, "And if she commit a theft of her own voluntary act or by the base command of her husband, or be guilty of treason, murder, or robbery in company with or by coercion of her husband, she is punishable as if she were sole."

COLERIDGE, J. On such authority the case must proceed. But if the prisoner be convicted I shall reserve the point for the consideration of the judges.

The prisoner, however, was found not guilty.

In R. v. Stapleton, S. and his wife were indicted for a robbery in which the latter appeared to have taken an active part. BUSHE, C. J., left the question of coercion to the jury who found both prisoners guilty. The point was reserved for the consideration of the judges who held that the presence of the husband afforded only presumptive evidence of coercion of the wife which was capable of being repelled by other evidence. Some of the judges doubted whether the privilege of a feme covert existed in any case attended with violence to the person. The conviction was sustained.

It is held in Arkansas that under the statutes of that State, if a married women commits a crime of any kind or degree, under the threats, commands, or by the coercion of her husband, she can not be found guilty, but the coercion is not to be presumed from his presence, but must be proved by circumstances. In Freel v. State, Sally Freel was indicted for and convicted of aiding and abetting her husband in the murder of one Ortner. On appeal the Supreme Court said: "The plaintiff in error moved the court to instruct the jury as follows: If the jury believe from the evidence that the act charged in the indictment was committed by the defendant, Sally Freel, in the presence of the defendant, James M. Freel, and the said James M. Freel is and was her husband at the time of its commission, they must find the defendant, Sally Freel, not guilty under the indictment.' Which the court refused; and the plaintiff in error then moved the court to instruct the jury as follows: That if they believed from the evidence that she was the wife of the said defendant, James M. Freel, and the said act charged in the indictment was done or committed by the defendant, Sally Freel, in the presence of the said defendant, James M. Freel, the presumption of law is that the said act was done and committed by her under and on account of the coercion by the said defendant, James M.

1 R. v. Torpey, 12 Cox, 45 (1871);* R. v. Price, 8 C. & P. 19 (1837).

2 Id.

1 Cox C. C. 183 (1845).

4 Vol. 1, p. 18.

61 Cr. & D. 163 (1828).

621 Ark. 212 (1860).

Freel, and that this presumption continues until it is rebutted by evidence on the part of the State, showing that she did not so act under such coercion.' Which the court refused; and of its own motion, instructed the jury as follows: "That under the indictment herein, they can find the defendant guilty of murder in the first degree, or murder in the second degree, or manslaughter. That the fact that the offense charged in the indictment was committed by defendant in the presence of the said defendant, James M. Freel, the husband of this defendant, affords her no legal excuse or justification for its commission." Marriage does not deprive the wife of the legal capacity of committing crime. Where she voluntarily commits crime of any grade, the mere presence of her husband does not excuse her. It is said in some of the English books, that if she commit treason, murder, or robbery, by the coercion of her husband, the law on account of the odiousness and dangerous consequences of these crimes, will not excuse her.1

Mr. Bishop thinks the better opinion is that the coercion of the husband will exempt her from criminal liability for any offense whatever. It is agreed by the authorities, that, by the common law, the coercion of the husband is not to be presumed from his presence in cases of treason, murder and robbery, though as to other felonies and misdemeanors, perhaps, the rule is otherwise." Our statute declares that: "Married women acting under the threats, commands, or coercion of their husbands, shall not be guilty of any crime or misdemeanor, if it appears from all the facts and circumstances of the case, that violence, threats, commands, or coercion were used.

The first instruction moved by the plaintiff in error was properly refused by the court, because it assumes the law to be in effect, that the wife can not commit a crime in the presence of her husband or at least that his presence exempts her from criminal liability.

The second was also properly refused, because it assumes that the coercion of the husband is to be presumed from his presence, in a case of murder (the instruction does not discriminate between offenses), which is contrary to the common-law rule and not warranted by our statute. The charge given the court of by its own motion, to the effect that the presence of the husband was no legal excuse or justificaton for the commission of the offense by the wife was subtsantially correct. If the common-law rule was that the coercion of the husband was no excuse for the wife in treason, murder, and robbery, as stated by the English authors above cited (but controverted by Mr. Bishop) then the effect of our statute was to extend the rule, and make the coercion of the husband an excuse for the wife in "any crime or misdemeanor;" but there is nothing in the statute from which it may be inferred that the Legislature meant to extend the rule further, and make the presence of the husband raise the presumption of compulsion in all cases; on the contrary, the excuse of the wife is made to depend, by the terms of the statute, upon its appearing, "from all the facts and circumstances of the case," that coercion was used.

$ 35

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In the Federal Courts. It has been questioned whether the rule still holds good as to statutory crimes in the Federal courts.5

1 Arch. Crim. Pl. & Ev. 6; Roscoe Cr.

Ev. 956; Hale P. C. 44.

2 Bishop Cr. L., sec. 277. But see Whar ton, sec. 3.

Ib. and note to Hale, 46 (Stokes & Ing. ed.)

Dig. Ch. 51, sec. 1, of Part I.

5 U. S. v. De Quilfeldt, 2 Crim. L. Mag. 211 (1881.)

§ 36. Coercion of Wife-Assault and Battery. So a married woman is not liable for an assault committed by her in the presence of her husband. In State v. Williams,1 the husband of the feme defendant was jointly indicted with her for an assault and battery upon one Anna Davis. It was in evideuce that the defendant and her husband committed a battery on the prosecutrix. The defendant's counsel asked the court to instruct the jury that the feme defendant was not guilty, as the offense had been committed with her husband, and in his presence.

The court declined so to charge, but instructed the jury that when a married woman in the presence of her husband, committed an offense against natural law, and with force and violence, the presumption of coercion did not arise. Defendant excepted; verdict of guilty; judgment and appeal.

Attorney-General for the State.

No counsel for the defendant.

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RODMAN. J. The liability of a wife for a crime committed in the presence of her husband, has been variously stated by respectable text-writers. Blackstone says: "And in some felonies, and some inferior offenses committed by her (the wife) through constraint of her husband, the law excuses her; but this extends not to treason or murder." The same writer in Book IV. says: "And she will be guilty in the same manner, of all those crimes which like murder are mala in se, and prohibited by the law of nature." Also in Archbold's Criminal Practice and Pleading: "So if a wife commit an offense under felony, even in company with her husband, she is liable to punishment as if she were not married." For this is cited 1 Hawkins. "And generally a feme covert shall answer as much as if she was sole, for any offense, not capital, against the common law or statute. And if it be of a nature that may be committed by her alone without the concurrence of her husband, she may be punished for it without her husband," etc. It was upon a recollection of these authorities that his honor below ruled in the case as he did. Nevertheless, upon a fuller examination of the authorities, we are of the opinion that he was in error. It seems to be admitted by all the authorities, that if a wife commit any felony (with certain exceptions not material now to consider), in the presence of her husband, it shall be presumed, in the absence of evidence to the contrary, that she did it under constraint by him, and she is therefore excused. It is generally agreed that treason and murder are exceptions to this rule; and some add to these manslaughter, robbery, and perjury, although the last is not a felony. The most important (perhaps all), of the authorities will be found referred to in the notes to Commonwealth v. Neal; in the argument of the counsel for the prisoner in Regina v. Cruse,' and in 1 Bishop Criminal Law. As has been seen, several eminent text-writers confine the presumption to cases of felony. But the more recent cases, both English and American, extend it to misdemeanors as well; those cases excepted, which from their nature would seem more likely to be committed by women, such as keeping a bawdy house, etc. The case above referred to, of Commonwealth v. Neal, was an indictment against husband and

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wife for an assault and battery, and is therefore in point. Bishop1 considers the rule applicable to all offenses whatever, with certain exceptions such as treason, murder, etc. There are many English cases in which it has been applied in indictments for receiving stolen goods.2 Rex v. Price,3 was for a misdemeanor in uttering counterfeit coin; and so was Conolley's Case. When our accustomed authorities differ as to a principle, it is always proper to look at its foundation in reason. Mr. Lewin, in his note to Rex v. Hughes,' says that the reason of the rule, in cases of burglary and larceny, had been said to be, that the wife might not know whose the goods were that were taken. This reason he properly rejects as insufficient, and suggests that it was considered odious and unjust to inflict on the wife a severe punishment, when the husband could plead his clergy (which a woman could in no case do), and thus escape with a slight one. The reason would confine the principle to the clergiable felonies. It seems, however, more natural to suppose the principle to have been founded upon the fact, that in most cases the husband has actually an influence and authority over the wife, which the law sanctions or at least recognizes. In that case the reason would apply to misdemeanors with at least as much force as to clergiable felonies. And this we think the true view. It is also conceded by all the authorities that the presumption may be rebutted by the circumstances appearing in evidence, and showing that, in fact, the wife acted without constraint; or by the nature of the offense. But in this case no circumstances appear tending to rebut the presumption which the law raises; and the case was not put to the jury in that point of view. There was error.

PER CURIAM.

Venire de novo.

§ 37. Coercion of Wife-Larceny. - In R. v. Wright, it was ruled that where a larceny is jointly committed by a husband and wife, the wife is entitled to be acquitted as under coercion, and that the woman being indicted as the wife of A. B. (the male prisoner) is sufficient proof that she is so for this purpose. In this case, Henry Knight and Anne, his wife, were indicted for stealing curtain pins. From the evidence it appeared that both the prisoners were in company at the time of the theft. PARK, J., directed the jury to acquit the female prisoner, because if a man and his wife jointly commit a felony, the wife, being presumed in law under his coercion and control, is entitled to an acquittal. It was not necessary in this case to adduce evidence to show she was his wife, as it was admitted on the face of the indictment, the prisoners being indicted as "Henry Knight and Anne, his wife."

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§ 38. Coercion of Wife - Attempt to Murder. — In R. v. Alison, PATTESON J., said: "There is an old case which occurred as far back as the reign of James I., which was very similar to the present. In that case a husband and wife, being in extreme poverty and great distress of mind, were conversing together on their unfortunate condition, when the husband said, "I am weary of life and will destroy myself," upon which the wife replied, "If you do, I will too." The man then went out, and, having bought some poison, he mixed it with

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some drink, and they both partook of it. The draught was fatal to the husband, but the wife, in her agony from the effect of the poison, seized a flask of salad oil and drank it off, which caused a sickness of the stomach, and the consequence was that she voided the poison, and her life was saved. She was afterwards tried for the murder of her husband in this very court, and acquitted, but solely on the ground that, being the wife of the deceased, she was under his control; and inasmuch as the proposal to commit suicide had been first suggested by him, it was considered that she was not a free agent, and therefore the jury, under the direction of the judge who tried the case, pronounced her not guilty."

§ 39. Coercion of Wife

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-Receiving Stolen Goods. Nor for receiving stolen goods jointly with her husband,1 or sent to or given her by her husband, is the wife punishable.2

In R. v. Hill, A. and B. stole some fowls. A. sent them by coach in a hamper, without a direction, to Birmingham, stating that a person would call for them. C., wife of A., called, and, on the hamper being shown to her, claimed it. It was not delivered to her, and she was apprehended. It was held that she could not be convicted of feloniously receiving the fowls.

The prisoners, William Hill, James Hill, and Catherine Hill, wife of William Hill, were indicted at the Warwickshire Quarter Sessions on the 12th of March, 1849, William Hill and James Hill, for stealing twenty fowls, the property of John Smith, and Catherine Hill for receiving the fowls so stolen, etc., knowing, etc. It was proved that the prosecutor was a farmer, residing at Marton, in the County of Warwick, and possessed at the time of the robbery of a quantity of fowls, principally of the Dorking breed. The fowls, to the number of twenty, were stolen from the prosecutor's premises between the evening of the 26th and the morning of the 27th of February. On the 28th of February, between seven and eight o'clock in the morning, the prisoner, James Hill, accompanied by the other prisoner, William Hill, brought in a wheelbarrow, to an inn at Redditch, a box and a hamper, and delivered them to go by the coach to Birmingham. There was no direction affixed to either of them, but the prisoner, James Hill, on delivering them, said "a person would call for them at Birmingham." The box and hamper were taken to Birmingham the following day, 1st of March, and shortly after the arrival of the coach in Birmingham, the prisoner, Catherine Hill, came to the coach office and inquired after the box. The box was shown to her by the coachman, and she claimed it as the box which she was come for. Upon this she was taken into custody, and the box being opened in her presence, was found to contain ten fowls. The fowls were plucked of their feathers, and from the claws of eight of them, a fifth toe had been cut away, which was remaining upon the other two fowls. The prisoner, Catherine Hill, in answer to the observation of the police constable that these fowls were believed to be the property of the prosecutor, Mr. Smith, of Marton, said, "they had been sent to her from Stourbridge." The same day the house of the prisoner, William Hill, which is near to Redditch, ten or twelve miles from Birmingham, was searched by two police constables, who found a large quantity of feathers, chiefly white, which appeared to have been recently plucked, and

R. v. Matthews, 1 Den. 596 (1850); R. v. Wardroper, 8 Cox, 284 (1860); R. v. McClarens, 3 Cox, 425 (1849).

2 R. v. Hill, 1 Den. 456 (1849); R. v. Brooks, Dears. 184 (1853).

3 Id.

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