§ 22. Nor Larceny of or in Husband's Property. And a wife stealing from a building owned by her husband is not guilty of larceny, nor if she steal another's property in her husband's house is she guilty of stealing "in the house of another, "within the statute," nor if she steal property of another held by her husband as trustee is she guilty of larceny.3 In R. v. Gould, at the Old Bailey in January sessions, 1780, Anne, the wife of John Gould, was tried before NARES, Justice, present SKINNER, Chief Baron, ASHURST, Justice and ADAIR, Recorder, on an indictment charging the prisoner with having stolen, one leather purse containing six guineas, the property of William Hening in the dwelling-house of the said John Gould. The indictment was framed on the statute of 12 Anne,5 which enacts "that every person that shall feloniously steal any money, goods, etc., of the value of forty shillings, being in any dwelling-house or otherwise thereunto belonging, although such house or out-house be not actually broken by such offender, and although the owner of such goods, or any other person, be or be not in such house, etc., shall be absolutely debarred of clergy." The judges present were clearly of opinion, in which Mr. Justice GOULD afterwards concurred, that the prisoner could not be convicted of the capital part of the indictment, inasmuch as the felony was committed in the dwelling-house of her husband, which must be construed to be her house also, and it is apparent that the Legislature intended that the stealing must be in the house of another to oust the offender of clergy. 6 In R. v. Willis, the prisoner, the wife of John Willis, was tried and convicted before Mr. Justice PARK, at the Spring Assizes for the county of Wilts, in the year 1833, for stealing twenty-five sovereigns, ten half sovereigns, eight half crowns, and forty shillings, the property of William Orchard, and thirty or forty others, and amongst them the prisoner's husband; all of whom were named in the indictment. This was a case of a friendly society held at the public house kept by the prisoner's husband, he being a member of the society, and the box containing the property was always left in the house of the husband of the prisoner; but the box had four locks, kept by the stewards, of whom he was not one. The facts of the case were quite clear; the wife having broken open this box and stolen a great deal of money to pay some debts of a former husband, and the jury convicted her to the learned judge's satisfaction as to the facts, but the learned judge thought it right to ask the opinion of the judges, whether a wife can be convicted of larceny, in stealing money in which her husband has a joint property, and deferred the sentence. 7 The learned judge referred the judges to 1 Hale, P. C., Russell on Crimes,8 Rex. v. Bramley, and to the first case in the Old Bailey Sessions papers for the January sessions, 1818, tried before the learned judge, in the presence of Lord Tentenden, then Mr. Justice Abbott.10 In Easter Term, 1833, this case was considered at a meeting of the judges, and they were of opinion that the conviction was wrong; and the prisoner was discharged. In R. v. Tollett,1 COLERIDGE, J., said: "By law there is such a unity of interest between husband and wife that ordinarily the wife can not steal the goods of the husband, nor can an indifferent person steal the goods of the husband by the delivery of them by the wife." In East's Pleas of the Crown it is said: "A feme covert can not commit larceny of her husband's goods from his own possession, because by law they are considered but as one person, and she has a kind of interest in his goods. On which account not even a stranger can commit larceny of such by the delivery of the wife, although he knew they were the husband's goods; as he may by taking the wife by force and against her will, together with the goods of the husband by force of the statute. Nathaniel Harrison was indicted for stealing some plate; and it appearing that the prosecutor's wife had the constant keeping of the key of the closet where the plate was usually locked up, and that the prisoner could not have taken it without her privilege and consent (which appeared probable from other circumstances; although no direct evidence of the fact could be produced), the court, thinking that it might be presumed that he had received it from her, directed him to be acquitted, which was accordingly done. Neither can the wife commit larceny in the company of her husband; for it is deemed his coercion and not her voluntary act. Yet if she do it in his absence and by his mere command she is then punishable as if she were sole. And the husband, it is said, may be accessory to his wife in receiving of her; though not the wife for the receipt of the husband; a technical distinction for which there seems no just reason. Hawkins thinks she is also liable if she commit a robbery in company with her husband. And even with respect to larceny, Lord Hale in one place says, it is only a presumption in law till the contrary appears; for he was always of the opinion that if upon the evidence it clearly appeared that the wife was not drawn to the offense by the husband, but that she was the principal actor and inciter to it, she was guilty as well as the husband. But in another part he says, that the contrary practice, which he thinks fittest to be followed, had prevailed. And I am not aware that the former opinion, however reasonable it appears, has been acted upon in any modern instances, though the occasion must have too often occurred. How ever, if a wife be guilty of larceny in company with her husband, both of them may be indicted; and if the husband be convicted, the wife shall be acquitted. But if the husband be acquitted, and it appear that the felony were by her own voluntary act (by which must be understood that the husband, if present, had no knowledge of or participation in the fact), she may upon the same indictment be convicted; for the charge is joint and several. And if a woman insist that she is the wife of the man in whose company the felony was done, she may be indicted by her husband's name and her own, with an alias, and the addition of spinster; and it will lie upon her to prove her coverture, or else she may be found guilty." could be convicted of a felony alleged in stealing goods when such goods came into his possession by the delivery of the proprietor's wife. But see Rex v. Tolfree, supra, 243, by which it would appear that the ruling in Rex v. Clark would be overruled. 1 1 C. & M. 115 (1841). § 23. Nor Embezzlement of Husband's Property.convicted of the embezzlement of her husband's property. § 24. Nor can she be No fine can Forcible Entry and Detainer - Obstructing Road. be imposed on a wife for a forcible entry and detainer. And a wife can not be convicted and a husband acquitted of obstructing a public road. $ 25. Nuisance. In People v. Townsend, several owners of property were indicted for a nuisance. On appeal, BRONSON, J., said: "Nor do I see on what principle the femes covert were included in the indictment. During coverture the husband has the control of the wife's estate, and if he erects a nuisance on her land she can not be made to answer criminally for that offense." $26. Wife not Liable as Bailee. — In R. v. Denmour, the prisoner and his wife were indicted for having as the bailees of Grace Webster unlawfully converted to their own use certain articles of clothing, the property of Grace Webster. It was proved by the prosecutor that the prisoners were husband and wife; that having come to Falmouth to get a place, she had gone to the prisoners' house, and they together offered to take charge of her clothes. Knowing them she accepted their offer. Two days afterwards, having procured a place, she went to the prisoners and demanded her clothes; they said they had parted with them, but she should have them again in a few hours. The clothes were not returned, for in fact some of them had been sold, and some pawned by the female prisoner alone. On this evidence MARTIN, B., asked counsel if he thought he could support the charge. The indictment was for larceny as bailees. The prisoners were husband and wife. A wife could not be a bailee, and the husband was not proved to have taken any part in the alleged conversion. Cox, for the prosecutor, said that he fully assented to his Lordship's view of the case. An acquittal was directed § 27. Neglect to Supply food to Infant-Wife not Liable. -In R. V. Squire, tried at the Stafford Lent Assizes, A. D., 1799, Charles Squire and Hannah, his wife, were indicted for the murder of a boy who was bound as a parish apprentice to the prisoner, Charles; and it appeared in evidence that both the prisoners had used the apprentice in a most cruel and barbarous manner, and that the wife had occasionally committed the cruelties in the absence of the husband. But the surgeon who opened the body deposed that in his judgment, the boy died from debility and want of proper food and nourishment, and not from the wounds which he had received. Upon this Lawrence, J., directed the jury that as the wife was the servant of the husband, it was not her duty to provide the apprentice with sufficient food and nourishment, and that she was not guilty of any breach of duty in neglecting to do so; though if the husband had allowed sufficient food for the apprentice, and she had wilfully withholden it from him, then she would have been guilty; but that here the fact was otherwise, and therefore, although in foro conscientiæ, the wife was equally guilty with her husband, yet in point of law, she could not be said to be guilty of not providing the apprentice with sufficient food and nourishment. 1 R. v. Robinson, L. R. 1 C. C. 80 (1867). 2 State v. Harvey, 3 N. H. 65 (1821). 3 Rather v. State, 1 Port. 132 (1834). 43 Hill, 481 (1842). 68 Cox, 440 (1861). § 28. Third Person Assisting Wife to Remove Husband's Goods — Adulterer. A third person who assists a wife to take away her husband's goods is protected like the wife and is not guilty of their larceny.1 In R v. Taylor,2 the prisoner was indicted for stealing £2 8s., the property of John Willett. The prosecutor said that the prisoner had lodged at his house. He, Willett, went to his work on the 30th of April, 1872, leaving his wife and the prisoner in the house. When he returned from his work he found that his wife and the prisoner had gone; he also missed £2 s. from a drawer in the kitchen. A police officer stated that he apprehended the prisoner on the 26th of July last, when the prisoner said that he did go away with the woman, but did not take the money; she took it. The wife was then called by the counsel for the prosecution, and she swore that, when she left her husband's house, she went with the prisoner. She took £2 8s. with her but it was the prisoner's money, not her husband's. The money was not in the drawer. The prisoner had earned the money himself. It was less than £1. She did not tell the magistrates the money was the prisoner's, but said she took the money. (Her statement did not correspond with that made before the justices who sent the case for trial.) LUSH, J. It appears that the prisoner bore no part in taking this money. Purton. The money was taken jointly if both he and the wife went away with it, although she only may have carried it. "When a stranger took the goods of the husband jointly with his wife, this was holden to be larceny in him, he being her adulterer." 3 LUSH, J. The prisoner must be proved to have taken some active part either in removing or spending the money. It is obvious that the woman can not have told the truth both before the committing justices and to-day, for her statements differ; but whichever is correct, there is no sufficient evidence to justify the conviction of the prisoner. Acquittal directed. Verdict accordingly. 4 In Reg. v. Kenny, the prisoner was tried upon an indictment, which charged him, in the first count, with stealing, on the 26th of August, 1876, certain money to the amount of £143, one purse, one silver watch, one child's cloak, one scarf, one American box, one prayer book, two money bags, and other articles of the moneys, goods and chattels of Edward Gurn; and in the second count, with feloniously receiving, on the day and year aforesaid, the moneys, goods and chattels aforesaid, well knowing the same to have been feloniously stolen. The following was the evidence: Edward Gurn-I am an inn-keeper at Burslem. On the 23d of June, 1876, my wife left my house without my knowledge or consent. The same night I missed one hundred and forty-three sovereigns; the money was in a bag, this bag (produced) is it; there was another bag without money in it, this (produced) is it; this watch (produced) is mine; my wife wore it sometimes; I gave her no permission to take it or any of the things; this prayer book (produced) is mine; these three sheets (produced) I believe to be mine; four were missing after my wife left; this bed cover, baby's cloak, scarf, and this American box (all produced), are mine; the money I saw safe on the morning of the 23d of June; I was saving it to buy horses in 1 R. v. Avery, 8 Cox, 184 (1859); State v. Banks, 48 Ind. 197 (1874). 2 12 Cox, 627 (1874). Reg. v. Tolfree, 1 Mood. C. C. 243; Reg. v. Featherstone, 6 Cox C. C. 376. 4 L. R. 2 Q. B. Div. 307 (1879). Ireland. Three days after my wife left, I saw the prisoner; he came to my house; a week after that he came again, and asked how much money my wife took; I told him £15 or £20; I told him that, because I wanted some information from him; I accused him of being out car-driving with my wife on the Sunday before; he denied it; the prisoner left the neighborhood shortly after, and I never heard of him or my wife till October, when I went to Ireland with a police officer; I found them together at Belfast; they were in a back room, packing a box; the prisoner was packing it; it was my American box; I saw some of the contents of the box; my prayer book was in it, and the child's cloak; the bed cover was in the prisoner's box; I saw the prisoner searched; he was wearing my watch. Cross-examined - I sometimes wore the watch, so did my wife; I had another; I wore both as I liked; my wife deposited over £100 with a Mr. Jackson, at Cheadle, eighteen months before; she did not do that when I had a woman named Sherlock in the house; nothing of the sort took place; my wife was in court at Tunstal; she did not give evidence; the gold was locked up in a drawer; I had the key in my pocket, and she must have got another. Re-examined — She took the £100 to Jackson against my will; it was my money; I wrote to him for it, and he sent me a cheque, which I cashed, and this was part of the £143. John Dodd-I am a sergeant, Staffordshire police; the prisoner was in that force until the 24th of July last, stationed as Burslem; he had not much money; his wages 22s. per week; I heard of him borrowing from his comrades; he was a single man; I went with prosecutor to Belfast in October; we found the prisoner and the prosecutor's wife there together; he was wearing this watch (produced); I found on him, in these two bags (produced) £98 14s. 8d. Cross-examined - There were four Irish £1 notes in the money; the bags were in his pockets; all the other things (except the watch) were in the boxes, and in the rooms occupied by the prisoner and Mrs. Gurn. Re-examined - The prisoner was packing the box in which I found the bed cover. Harriet Upton- (Evidence of inability to travel, arising from illness, having been duly given, the deposition of this witness before the magistrates was read as follows) — I am a single woman, and live at 10 Paradise Row, Chester; I know the prisoner; I recollect him coming to my house early in the month of August last. It would be about one in the morning; previously to his coming a lady had been lodging in my house about six weeks; she gave the name of Mrs. Burslem; the photograph now produced is the photograph of the lady; Mrs. Burslem opened the door for the prisoner when he came; they occupied the same bed-room that night, and left at ten o'clock the night following; I see the American box produced; the prisoner assisted in moving the box downstairs, and from the house; since the prisoner and Mrs. Burslem left, I have had a letter asking me to visit them; it came from Belfast; there was only one bed in that room. Edward Gurn, the prosecutor, re-called-The photograph now produced to me is the photograph of my wife. Upon this evidence the counsel for the prosecution relied on the second count of the indictment, and contended on the authority of the cases of Reg. v. Deer,1 and Reg. v. Featherstone,2 that the wife by adultery with the prisoner in August at Chester, "determined her quality of wife," and in then converting her hus ? L. & C. C. C. 240; 32 L. J. (M. C.) 33. 2 Dears. C. C. 360; 23 L. J. (M. C.) 127. |