wife, for which the husband is liable, either separately or conjointly with his wife, he must be made a party to the judgment, and equally subject to arrest and imprisonment, to enforce the payment. This doctrine is more particularly applicable to arrests under civil process; but where the penalty consists of a pecuniary forfeiture merely, the principle is the same regardless of the form of prosecution. The policy of the rule is to create a sufficient inducement for the husband to exert himself to discharge the debt, and exonerate both. For the commission of various indictable offenses, especially for crimes of the higher grade, by a feme covert she may be punished without her husband, if he were not present or in any manner encouraging or assenting to them. It is a legal presumption, that whatever the wife does in the presence of her husband is done under his coercion - so as to subject him to the punishment and (in respect to some offenses) to exonerate her; yet the husband may show the contrary-that the act was committed against his will, and thus discharge himself from liability to any infamous or corporal punishment, though the wife be subject to the

same.

There are crimes malum in se, for the commission of which by the wife the presence and presumed coercion of the husband affords her no impunity such as treason, murder, etc.1

This case must be governed by the law applicable to the inferior grade of crimes and misdemeanors; and the nature of the offense, and the character of the punishment, more than the form of the prosecution, must determine the relative liability of the parties. In New York it has been held, that the husband was liable in a qui tam action for a forfeiture under their statute, incurred by the wife, by retailing liquors in his absence.2

Besides the policy of the principle already alluded to, the additional reason exists for the liability of the husband, that being entitled to his wife's portion, and all her earnings, he alone has the means of discharging the forfeiture.

As respects the form or character of this prosecution, it is considered sufficient to say, that it is in the nature only of an information to recover a fine or forfeiture for the violation of a penal statute — that having been commenced as it should be, against the husband as well as the wife; she was not subject to a conviction, unless he had been also convicted. That on the acquittal of the husband, the wife was also entitled to her discharge-consequently there was error in the judgment, for which it must be reversed.

1 Dom. Rel. 74; 1 Hawk. P. C. 5 and Ba. Ab. tit. Baron and Feme.

2 10 Johns. 256,

HUSBAND AND WIFE-THIRD PERSONS ASSISTING WIFE TO REMOVE HUSBAND'S GOODS-LARCENY.

R. v. AVERY.

[8 Cox, 184.]

In the English Court of Criminal Appeal, April, 1859.

Larceny-Husband and Wife-Wife Taking away Husband's Goods-Third Persons Assisting. — A. and B., relatives (uncle and cousin) of the wife, assisted the wife in packing and removing the husband's goods, the wife intending to leave the husband's dwelling and not intending to return to him. There was no evidence that the wife had committed adultery with either of the prisoners, or intended to do so. The jury found that the prisoners took the goods without the knowledge or consent of the husband, but with the intent to deprive him of the property in them: held, that the conviction could not be sustained, as it had not been left to the jury to say whether the prisoners took the goods at the time animo furandi as principals, or whether they were merely assisting the wife to carry off the husband's goods.

Case reserved by the Recorder of the Liberty of Romney Marsh, from the Spring Quarter Sessions, 1859.

The indictment charged the prisoners, Henry Avery and William Henry Avery, with stealing a carpet, a feather bed, boxes, baskets, and a quantity of wearing apparel, the property of the prosecutor, Carpenter, from his dwelling-house.

The prosecutor was a laboring man living with his wife. The prisoner Henry was uncle, and the prisoner William Henry was cousin to his wife.

The prisoners came together on the night of the 9th of February, and again on the night of the 10th, to the prosecutor's house, without his knowledge, and after he had gone to bed. The wife was at home on each occasion and admitted them. On the first night they packed and took away, in the wife's presence and with her privity and consent, a box containing property of the prosecutor; and on the second night. they took, in her presence and with her privity and consent, a carpet, and a large iron cooking pot.

On the morning of the 11th, after the prosecutor, who was in the habit of leaving home early, had gone to his work, the prisoner William Henry went to the prosecutor's house, between eight and nine o'clock, and, with his wife's privity and consent, carried away the bed, and placed it in a granary at a short distance, requesting the person who gave him permission to do so, that the prosecutor should not be informed of it.

Prisoner, William Henry, then returned to prosecutor's house, and shortly after went away with the wife, William Henry taking with him a basket containing property of the prosecutor.

The wife left her husband's home without his knowledge and assent, and without the intention of returning.

They went together to the home of Henry, the other prisoner, at a distance of about three miles.

The prosecutor was informed on the same Friday that his wife and goods were gone, and he went that evening with the constable to the prisoner Henry's house. Henry was in, and being asked, denied that he had any property of the prosecutor's, or anything in the house that was not his own, on which the house was searched, and a milk jug of the prosecutor's was found in the bed-room, concealed between the bed and the sacking of the bed; and also, in the same room, several other articles belonging to the prosecutor. In a room in an adjoining house, where Henry Avery, by permission, had placed some of the property, of which room he produced the key, after a denial by him that he had it, were found two boxes of the prosecutor's with his property therein, upon which boxes was the following address in the handwriting of the prisoner William Henry: "H. Avery, to be left at the Rose Inn, Folkestone," with the additional words "by Sherwood" on one of them. The prosecutor's goods also were found in the granary, where the prisoner William Henry had placed them.

There was no evidence to show that the wife remained at the prisoner Henry's house, or that she had committed adultery with either of the prisoners, or intended to do so. She was not called as a witness.

It was contended by the counsel for the prisoners, that, to make them guilty of felony, there must be either an adultery committed, or an elopement with the wife with intent to live in adultery with one of them, or with somebody else, with their knowledge and assistance; and Reg. v. Harrison,1 was relied on.

The jury found that the prisoners took the goods without the knowledge or consent of the husband, and with the intention to deprive him absolutely of his property in them.

As it appears doubtful, upon the authorities, whether adultery committed or contemplated is necessary to constitute a felonious taking in cases of this nature, I directed a verdict of guilty to be entered, that the opinion of the Court for the Consideration of Crown Cases Reserved might be taken upon the question whether upon these facts the indictment was supported. JOHN DEEDES.

No counsel appeared on either side, but while the court was deliber

1 1 Leach C. C. 47.

1 DEFENCES.

sting the case of Reg. v. When Berg, vis holed up, of which the following is the marginal note:

-A. being about to elope with B.'s wife, engaged a porter to bring Le sant to the busband's boase, will be 21 and A. then assisted the wife in packing up the husband's property and pissing it in the cart. A.. the wife, and her three chines, then went sway with the things to a distant place, where the wife sock lodgings in her own name, and afterwards A. and the wife being frond living there, A. was charged with stealing the things.

- Hell, that it was a proper direction to the jury to tell them that, if they were satisfed that A. and the wife, when they so tock the property, went away together for the purpose of haring, and afterwards had, adulterous intercourse, they ought to find the prisoner guilty; but if they believe that they did not go away with any such purpose, and had Lot committed adultery together, the prisoner was entitled to an acquittal"

COCKBURN, C. J. We are of opinion that the conviction in this case can not be sustained. It is clear, on the finding of the jury, that no adultery took place between the prosecutor's wife and either of the prisoners, or was intended, and it is not found that there was any intention on the part of the prisoners, when she abandoned her husband's dwelling, to commit a felony. The goods were taken away with the privity of the wife when she was abandoning her husband's dwelling. It is not necessary for us to lay down as law that, supposing a stranger stole the goods of the husband, and the wife was privy to it and consenting, such privity and consent would, if there was an 'mus furandi in the stranger, exonerate him from what would otherwise be larceny. But in deciding that this conviction should be quashed we do not intend to say that we adopt that conclusion. We take, however, this to be clear, that a wife can not be guilty of larceny in taking the goods of her husband, and if a stranger do no more than merely assist her in the taking, inasmuch as the wife, as principal, can not be guilty of larceny, so neither can the stranger, as accessory, be guilty. In this case it was not found whether, when this act was done, the prisoners were acting as principals, or whether the goods were taken by the wife to deprive the husband of them, and the prisoners were merely assisting her. Under any circumstances, assuming that the prisoners could have been guilty of larceny, that is an essential consideration which ought to have been left to the jury, and that being undecided, we must adopt the view of the case most favorable to the prisoners, and, we think, therefore, that the conviction must be quashed.

1 28 L. J. 70, M. C., and 8 Cox, 117.

Conviction quashed.

LARCENY BY WIFE-THIRD PERSON ASSISTING.

STATE v. BANKS.

[48 Ind. 197.]

In the Supreme Court of Indiana, November Term, 1874.

1. A Person is not Guilty of Larceny in aiding a wife to steal her husband's goods.

2. Same

Instructions-The following instruction held correct: "It appearing from all the evidence in the case that the goods were taken by the defendant with the consent of the owner's wife under an agreement with her that he was to dispose of the same and account for the proceeds to her, and there being no evidence tending to show that there was any adulterous intercourse, actual or contemplated, between the defendant and said wife, you will return a verdict of not guilty."

From the Benton Circuit Court.

J. C. Denny, Attorney-General, and D. P. Thompson, Prosecuting Attorney, for the State.

BUSKIRK, C. J. The appellee was indicted in the court below for grand larceny. The indictment charged that the defendant, on the 10th day of October, 1871, unlawfully and feloniously did steal, take, and drive away two horses, one mare, one colt, one wagon, one set of harness, and one grind stone, the personal goods of John Hensicker.

The issue formed upon the plea of not guilty was submitted to a jury for trial, which resulted in a verdict of not guilty.

The court instructed the jury as follows: "It appearing from all the evidence in the case that the goods were taken by the defendant with the consent of the owner's wife, under an agreement with her that he was to dispose of the same and account for the proceeds to her, and there being no evidence tending to show that there was any adulterous intercourse, actual or contemplated, between the defendant and said wife, you will return a verdict of not guilty."

To the giving of this instruction, the State, by her prosecuting attortorney, excepted, and now prosecutes this appeal to obtain the opinion of this court as to whether the instruction was correct. It is insisted by the counsel for the State, that the instruction was erroneous, upon two grounds:

1. That it misdirected the jury as to the law applicable to the case. 2. That conceding the instruction properly expressed the law, the court erred in giving it, because it usurped the functions of the jury. In Hawkins Pleas of the Crown,1 the law is stated thus:

"It is certain that a feme covert may be guilty thereof by stealing the

1 Lib. 1, ch. 33, sec. 32.