230

228

229

by her husband has been applied to larceny, receiving stolen goods," burglary, arson,231 robbery,232 mayhem,233 assault and battery,234 forgery,235 abortion,236 uttering counterfeit money," 237 selling intoxicating liquors,238 and having possession of burglars' tools. 239

228 Anon., Lib. Ass'n, 137, pl. 40, Beale's Cas. 272; Rex v. Knight, 1 Car. & P. 116; Seiler v. People, 77 N. Y. 413.

229 State v. Houston, 29 S. C. 108; Goldstein v. People, 82 N. Y. 233.

230 Anon., W. Kelyng, 28, Beale's Cas. 273.

231 Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559. 232 Reg. v. Dykes, 15 Cox, C. C. 771, Beale's Cas. 274; Reg. v. Torpey, 12 Cox, C. C. 45; People v. Wright, 38 Mich. 744, 31 Am. Rep. 331; Quinlan v. People, 6 Park. Cr. R. (N. Y.) 9.

233 Reg. v. Smith, Dears. & B. C. C. 553, 8 Cox, C. C. 27; State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414.

234 Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105; State v. Parkerson, 1 Strob. (S. C.) 169; Com. v. Gaunon, 97 Mass. 547; State v. Williams, 65 N. C. 398.

235 People v. Ryland, 28 Hun (N. Y.) 568, 97 N. Y. 126.

236 Tabler v. State, 34 Ohio St. 127.

237 Rex v. Price, 8 Car. & P. 19; Conolly's Case, 2 Lewin, C. C. 229.

238 Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684; Com. v. Burk, 11 Gray (Mass.) 437; State v.

The principle does not treason 240 or murder.241 to such misdemeanors as

apply, however, to Nor does it apply keeping a bawdy

house. "A wife," said Hawkins, "may be indicted together with her husband, and condemned to the pillory with him, for keeping a bawdy house; for this is an offense as to the government of the house, in which the wife has a principal share, and also such an offense as may generally be presumed to be managed by the intrigues of her sex." 242

87. Presumption of Coercion and Rebuttal Thereof.

When a woman commits an offense in the presence of her husband it is presumed that

Cleaves, 59 Me. 298, 8 Am. Rep. 422.

239 State v. Potter, 42 Vt. 495.

240 1 Hale, P. C. 47; 4 Bl. Comm. 29.

241 4 Bl. Comm. 29; Anon., W. Kelyng, 28 Beale's Cas. 273 (citing the Case of the Earl of Somerset and his wife, who were found equally guilty of the murder of Sir Thomas Overby, by poisoning him in the Tower of London. 2 How. St. Tr. 951, 3 Co. Inst. 49). And see Reg. v. Manning, 2 Car. & K. 887; Bibb v. State, 94 Ala. 31, 33 Am. St. Rep. 88; State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414. But see State v. Kelly, 74 Iowa, 589. which is to the contrary.

242 1 Hawk. P. C. c. 1, § 12. And see 4 Bl. Comm.

she acted by his coercion, and she must be acquitted in the absence of evidence to the contrary.2 243 But this presumption may always be rebutted by proof that she acted of her own free will, and not by his coercion, and, if this is shown, she is as fully responsible as a feme sole.244 "The question of fact

243 Anon., W. Kelyng, 28, Beale's Cas. 273; Rex v. Price, 8 Car. & P. 19; State v. Kelly, 74 Iowa, 589; Com. v. Burk, 11 Gray (Mass.), 437; Com. v. Gaunon, 97 Mass. 547; Com. v. Eagan, 103 Mass. 71; State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414; State v. Williams, 65 N. C. 398; Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559; State v. Potter, 42 Vt. 495.

In Arkansas, by force of a statute, the presence of the husband is no defense unless it affirmatively "appear from the circumstances in the case that violence, threats, commands, or coercion were used." Freel v. State, 21 Ark. 212.

244 Reg. v. Torpey, 12 Cox, C. C. 45; Com. v. Daley, 148 Mass. 11, Beale's Cas. 275; State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422; People v. Wright, 38 Mich. 744, 31 Am. Rep. 331; State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414; Seiler v. People, 77 N. Y. 413; Goldstein v. People, 82 N. Y. 233; People v. Ryland, 28 Hun (N. Y.) 568, 97 N. Y. 126; State v. Williams, 65 N. C. 398; Tabler v. State, 34 Ohio St. 127; State v. Collins, 1 McCord (S. C.) 355; State v. Parkerson, 1 Strob. (S. C.) 169; Uhl v. Com. 6 Grat. (Va.) 706; Miller v. State, 25 Wis. 384.

to be determined is whether she really and in truth acted under such coercion, or whether she acted of her own free will and independently of any coercion or control by him." 245 When an offense is committed by a woman

In Com. v. Moore, 162 Mass. 441, it was held that since, under a statute, a wife could not be compelled to be a witness on an indictment against her husband, there was no presumption of coercion where a wife testified in favor of her husband on a criminal prosecution, and committed perjury. See Rex v. Dix, 1 Russ. Crimes 147.

A married woman may be indicted alone, or jointly with her husband, for keeping a bawdy house, gaming house, or liquor nuisance. Reg. v. Williams, 10 Mod. 63; Rex v. Dixon, 10 Mod. 335; Com. v. Tryon, 99 Mass. 442; State v. Collins, 1 McCord (S. C.) 355; State v. Bentz, 11 Mo. 27.

245 Com. v. Daley, 148 Mass. 11, Beale's Cas. 275. The fact that the wife is more active than the husband in committing the offense is evidence to be considered in determining whether she acted under his coercion, but it does not, as a matter of law, make her guilty, since the cause of her activity may have been her husband's influence, and, if it was so, she is not guilty. State v. Houston, 29 S. C. 108.

Where a wife choked a man, and told him to keep still, while her husband picked his pockets, it was held that the jury was justified in finding that she was not acting under coercion. People v. Wright, 38 Mich. 744, 31 Am. Rep. 331.

in the absence of her husband, coercion is not presumed, for no presumption arises from the mere fact of coverture; but coercion may be shown as a fact.246 To give rise to the presumption of coercion, however, the presence of the husband need not have been at the very spot where the offense was committed, or even in the same room, but it is sufficient if he was near enough for the wife to be under his immediate control or influence.247

246 2 East, P. C. 559; Rex v. Morris, Russ. & R. 270; Reg. v. Cohen, 11 Cox, C. C. 99; Reg. v. John, 13 Cox, C. C. 100; Brown v. Attorney General, (1898) App. Cas. 234, 18 Cox, C. C. 658; State v. Nelson, 29 Me. 329; Com. v. Murphy, 2 Gray (Mass.) 510; Com. v. Munsey, 112 Mass. 287; Quinlan v. People, 6 Park. Cr. R. (N. Y.) 9; Seiler v. People, 77 N. Y. 413; State v. Shee, 13 R. I. 535; State v. Potter, 42 Vt. 495.

247 Com. v. Burk, 11 Gray (Mass.) 437; Com. v. Munsey, 112 Mass. 287; Com. v. Flaherty, 140 Mass. 454. But see State v. Shee, 13 R. I. 535.

In Conolly's Case, 2 Lewin, C. C. 229, a wife went from house to house uttering base coin, her hus band accompanying her, but remaining outside. It was held that she was not guilty.

It was said in a Massachusetts case: "No exact rule applicable to all cases can be laid down as to what degree of proximity will constitute such presence, because this may vary with the varying circumstances of particular cases. And