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to the jury, the court telling them that if they were of the opinion that the goods were in the possession of the wife, and without the consent and control of the husband, they must find her guilty, but if they had any doubt of this, they must acquit her. Reg. v. Banks (1843) 1 Cox, C. C. (Eng.) 238. In Reg. v. Mathews (1844) 1 Den. Cr. C. (Eng.) 596, upon the conviction of a husband and wife for receiving stolen property, the conviction as to the wife was reversed by the appellate court, but the theory is not plain. It has been held, upon the joint indictment of husband and wife for receiving stolen goods, that the conviction of the wife cannot be sustained, although she was the more active, if it has not been left to the jury to say whether she received the goods in the husband's absence. Reg. v. Archer (1826) 1 Moody, C. C. 143. In Reg. v. Wardroper (1860) Bell, C. C. (Eng.) 249, 29 L. J. Mag. Cas. N. S. 116, 6 Jur. N. S. 232, 1 L. T. N. S. 416, 8 Week. Rep. 217, 8 Cox, C. C. 284, the conviction of a married woman, together with her husband, for receiving stolen property, was reversed, where the court refused to submit to the jury the question whether she received them from her husband, and, if not from him, whether she received them in his absence. But in Reg. v. Baines (1900) 69 L. J. Q. B. N. S. 681, 19 Cox, C. C. (Eng.) 524, 64 J. P. 508, 82 L. T. N. S. 724, 16 Times L. R. 413, a conviction of a married woman was affirmed, although the trial court did not specifically put to the jury the question whether there was a separate receiving by the wife, where there was evidence of the separate receiving by her when the husband did not exercise any control over her at all.

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(1882) 133 Mass. 381, 43 Am. Rep. 527; Com. v. Daley (1888) 148 Mass. 11, 18 N. E. 579; Com. v. Adams (1904) 186 Mass. 101, 71 N. E. 78.

Michigan. People v. Wright (1878) 38 Mich. 744, 31 Am. Rep. 331.

Missouri.-State v. Ma Foo (1891) 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222; State v. Miller (1901) 162 Mo. 253, 85 Am. St. Rep. 498, 62 S. W. 692.

New York. Seiler v. People (1879) 77 N. Y. 411; Goldstein v. People (1880) 82 N. Y. 231; People v. Hyland (1884) 97 N. Y. 126; Goodman's Case (1821) 6 N. Y. City Hall Rec. 21.

North Carolina.-State v. Nowell (1911) 156 N. C. 648, 72 S. E. 590; State v. Seahorn (1914) 166 N. C. 373, 81 S. E. 687.

Ohio.-Tabler v. State (1877) 34 Ohio St. 127.

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Pennsylvania. - Com. V. Dwyer (1903) 29 Pa. Co. Ct. 73; Com. v. Hand (1914) 59 Pa. Super. Ct. 286; Com. v. Conrad (1871) 28 Phila. Leg. Int. 310.

South Carolina.-State v. Parkerson (1847) 32 S. C. L. (1 Strobh.) 169.

Virginia.-Uhl v. Com. (1849) 6 Gratt. 706.

Wisconsin.-Miller v. State (1870) 25 Wis. 384; Hatchard v. State (1891) 79 Wis. 357, 48 N. W. 580.

England. Reg. v. Banks (1843) 1 Cox, C. C. 238; Reg. v. M'Claren (1849) 3 Cox, C. C. 425; Reg. v. Dring (1857) 7 Cox, C. C. 382, Dears. & B. C. C. 329, 3 Jur. N. S. 1132, 6 Week. Rep. 41; Reg. v. Cohen (1868) 11 Cox, C. C. 99, 18 L. T. N. S. 489, 16 Week. Rep. 941; Rex v. Stapleton (1829) Jebb, C. C. 93; Reg. v. Baines (1900) 69 L. J. Q. B. N. S. 681, 64 J. P. 408, 82 L. T. N. S. 724, 16 Times L. R. 413.

A married woman living with her husband was convicted of larceny in Reg. v. Robson (1861) Leigh & C. C. C. (Eng.) 93, 9 Cox, C. C. 29, 31 L. J. Mag. Cas. N. S. 22, 8 Jur. N. S. 64, 5 L. T. N. S. 402, 10 Week. Rep. 61, where the evidence showed that lodgers were taken in by the prisoner and her husband, but she exclusively attended to them, made contracts with them, and received the payment from them, and her husband did not in any way interfere, and the larceny for which the prosecution was had consisted in tak

ing money from a box of one of the lodgers, kept by him in his bedroom, the key to which he intrusted to the prisoner upon making a journey. The husband did not know of her taking the man's money, and was innocent in the matter. Upon the joint indictment of a husband and wife for stealing from the person, and feloniously receiving, the wife was convicted in Reg. v. M'Huey (1862) Leigh & C. C. C. (Eng.) 250. In this case the jury found that she acted voluntarily with respect to her husband, and without any constraint on his part. A married woman was convicted of forgery, committed in the absence of her husband, in Rex v. Mories (1813) 2 Leach, C. L. (Eng.) 1096. A civil action brought against a husband and wife for ravishment of the plaintiff's ward was sustained in Moore v. Hussey (1724) Hobart, 93, 80 Eng. Reprint. 243.

In sustaining the commitment of a married woman for failure to maintain her previous bastard, as ordered by court, Lord Mansfield stated in Rex v. Taylor (1765) 3 Burr. 1679, 97 Eng. Reprint, 1043, that "a feme covert is liable to be prosecuted for crimes committed by her." But it has been held that a married woman cannot be convicted of the murder of her illegitimate child, three years of age, by omitting to supply it with proper food, unless it is shown that her husband supplied her with food to give to the child, and that she wilfully neglected to give it. Rex v. Saunders (1836) 7 Car. & P. (Eng.) 277.

In Rex v. Crofts (1796) 7 Mod. 397, 87 Eng. Reprint, 1316, it was held that a wife might be convicted, under a statute, for selling gin, without making her husband a party. In a joint indictment against the husband and wife for keeping a gaming house, the court, in answer to the objection that the indictment should be brought against the husband only, states that "this objection would have weight in it, if the property or the ownership of the house was the matter in question, but it signifies nothing here, where not the property, but the criminal management of the house (in which the wife may probably have as great,

nay, a greater share than the husband) is the fact charged. This case is not to be distinguished from the case of Reg. v. Williams (1795) 10 Mod. 63, 88 Eng. Reprint, 626, which was an indictment against husband and wife for keeping a bawdyhouse, and held good; for, as there the wife may be concerned in acts of bawdry, so here she may be active in promoting gaming, and furnishing the guests with all conveniences for that purpose." Rex v. Dixon (1795) 10 Mod. 335, 88 Eng. Reprint, 753. It is held in Com. v. Heffron (1869) 102 Mass. 148, that a wife may be convicted for keeping and maintaining a nuisance by selling intoxicating liquors, either jointly or severally, with her husband, upon proof that during part of the time covered by the sales by her husband, and in the same tenement, and without his coercion, she did the act necessary to constitute guilt on her part. A feme covert who was a sole dealer was held guilty of an illegal sale of intoxicating liquor in her presence, by her husband, who acted as her clerk, in Charleston v. Van Roven (1823) 13 S. C. L. (2 M'Cord) 465. In Reg. v. Campbell (1879) 8 Ont. Pr. Rep. 65, a married woman was convicted of an illegal sale of liquor made by her husband in her absence, but on premises leased by her.

In Reg. v. Cruse (1838) 8 Car. & P. (Eng.) 541, 2 Moody, C. C. 53, reported only by syllabi, it is stated that whether, where a husband and wife jointly commit the capital offense of inflicting an injury dangerous to life. with intent to murder, the wife is entitled to the legal presumption of her having acted under coercion, is a question, but she is clearly not entitled to be acquitted on this ground at the end of the case for the prosecution; for, if the jury find a verdict for an assault only (under § 11 of the Statute 1 Vict. chap. 85), the wife is punishable as well as the husband.

A wife jointly indicted with her husband for killing a slave by undue correction was convicted, although her husband was acquitted, in State v. Montgomery (1840) 25 S. C. L. (Cheves) 120, and the husband held.

not liable for a fine imposed on his wife.

In Rex v. Jordan (1685) 2 Keble, 634, 84 Eng. Reprint, 399, the court was inclined to the opinion that an information would not lie against a feme covert for selling fish, but that the information lay against the husband alone, it being his contract. Nothing is said as to the presumption of coercion.

A writ of error was taken from the conviction of a married woman for being a common scold in Reg. v. Foxby (1794) 6 Mod. 213, 87 Eng. Reprint, 965, but on what grounds does not appear. This judgment seems to have been reversed subsequently on the ground of error in the form of indictment (1794) 6 Mod. 239, 87 Eng. Reprint, 988.

In the very briefly reported case of Rex v. Chedwick (1685) 1 Keble, 585, 83 Eng. Reprint, 1126, it is stated that "Baron and feme convicted of perjury, she only is taken, and Powis prayed that she might stay till the husband came in, to receive judgment together, which the court denied. Stroud moved in arrest of judgment that the indictment was joint which, per curiam, is well enough, so of the issue jointly taken."

It seems that a forfeiture might be had against a feme covert, by statute, without joining the husband, at the time of the decision in Foster's Case (1614) 11 Coke, 56, 77 Eng. Reprint, 1222.

It is the doctrine of some cases, which seem not to dispute the liability of the wife, that, where the offense is one for which the punishment is nothing more than a fine, the wife cannot be convicted without the husband. Rather v. State (1834) 1 Port. (Ala.) 132.

That coverture is no defense is especially true, if the criminal acts took place in the absence of the husband, and the wife was acting of her own free will. State v. Collins (1821) 12 S. C. L. (1 M'Cord) 355; Reg. v. John (1875) 13 Cox, C. C. (Eng.) 100; Reg. v. Baines (1900) 69 L. J. Q. B. N. S. (Eng.) 681, 64 J. P. 408, 82 L. T. N. S. 724, 16 Times L. R. 413. In such a

case she may be indicted jointly with her husband, and convicted. Goldstein v. People (1880) 82 N. Y. 231; Re Law (1849) 2 Car. & K. (Eng.) 903, note, 2 East, P. C. 559. Where a husband and wife have planned a burglary and have secured the burglar's tools for the purpose, and thereafter, and before the burglary, the husband has gone away from the scene, the wife's possession of the burglar's tools during the husband's absence, on the occasion of the burglary, may be the joint possession of husband and wife, for which they may be convicted. State v. Potter (1859) 42 Vt. 495. That a married woman may be jointly indicted with her husband has been held in Com. v. Murphy (1854) 2 Gray (Mass.) 510; Com. v. Tyron (1868) 99 Mass. 442; State v. Bentz (1847) 11 Mo. 27; Goldstein v. People (1880) 82 N. Y. 231; Com. v. Hamor (1852) 8 Gratt. (Va.) 698; Re Law (1849) 2 Car. & K. (Eng.) 903, note, 2 East, P. C. 559. In Com. v. Ray (1808) 1 Va. Cas. 262, it was held lawful to join a husband and wife in indictment for assault and battery, but the fine, it was held, should be assessed against each defendant separately, upon conviction. On the contrary, the solicitor general entered a nolle prosequi as to a married woman who was indicted jointly with her husband, upon the statement of the court that the indictment could not be supported against her, on a joint indictment with her husband in Com. v. Trimmer (1805) 1 Mass. 476; but this case has been disapproved in later cases in this state. The right to indict husband and wife jointly, as a question of pleading, has not been exhaustively considered in this discussion.

c. Acts committed in husband's absence. The criminal liability of a married woman for crimes committed in the absence of her husband has not been uniformly stated. It has been stated, generally, that a married woman is criminally responsible at common law for a crime committed in the absence of her husband. Rather v. State (1834) 1 Port. (Ala.) 132 (dictum);

Pennybaker v. State (1831) 2 Blackf. (Ind.) 484 (dictum); Com. v. Roberts (1882) 132 Mass. 267; State v. Haines (1857) 35 N. H. 207. See also supra. It has been stated that if a married woman do a criminal act in the absence of her husband, even by his order or procurement, her coverture will be no defense. Com. v. Butler (1861) 1 Allen (Mass.) 4; Com. v. Feeney (1866) 13 Allen (Mass.) 560; Rex v. Morris (1814) Russ. & R. C. C. (Eng.) 270; Reg. v. Williams (1878) 42 U. C. Q. B. 462; Re Law (1849) 2 Car. & K. (Eng.) 903, note, 2 East, P. C. 559. A married woman who acted under the command of her husband, but in his absence, in procuring the payment of a forged order, was convicted in Rex v. Morris (1814) Russ. & R. C. C. (Eng.) 270. In State v. Potter (1859) 42 Vt. 495, an indictment of husband and wife for having burglars' tools in their possession, the trial court held that the imputed facts show that the wife's connection with the transaction was during the absence of her husband, and when she was free from his immediate influence and control, and the jury were charged that if they found she had the keys in her possession, and was carrying out a common intent to burglarize, she was then legally responsible, and a verdict of guilty might be rendered as to her. In holding this charge correct, the appellate court states that the wife was very clearly responsible for her possession during the husband's absence, and the fact that such possession was by the command of the husband, given before he left, would raise no presumption in her favor. The coercion must be at the time the act is done, according to Rex v. Hughes (1829) 2 Lewin, C. C. (Eng.) 229. According

ly, there is held to be no presumption of coercion where one went to the shop of the husband, and there, in the absence of her husband, and in accord with a bargain previously made with him, received counterfeit money of the wife; and this was held, although the husband came before he received his change.

It is doubtful whether the foregoing cases, which state the rule as an abso

lute one of liability, mean more than that there is no presumption of coercion where the criminal acts take place in the absence of the husband; but this meaning is, of course, not clear. It is a conceivable view that coercion by the husband, such as will excuse the wife from criminal liability, must take place when the husband is present, or at least near by, so that the coercion is backed by physical force, and this seems to be the view of some cases. In Brown v. Atty. Gen. [1898] A. C. (Eng.) 234, where the conviction of a married woman was sustained, the court states that the acts attributed to the prisoner were acts done by herself in the absence of her husband, "conclusively establishing that she was voluntarily acting and aiding and assisting in arrangements leading up to and intended to assist the commission of the offense, which was afterwards consummated." Brown v. Atty. Gen. is approved in Reg. v. Baines (1900) 69 L. J. Q. B. N. S. (Eng.) 681, 82 L. T. N. S. 724, 16 Times L. R. 413, 19 Cox, C. C. 524, 64 J. P. 408, a prosecution of husband and wife for receiving stolen goods. It has been stated: "The general rule upon this subject is. that, when the wife acts under actual constraint imposed by the husband, she will be relieved from legal guilt, if the act is committed in his presence; with the exception possibly, in some cases, of the higher crimes." State v. Houston (1818) 29 S. C. 108, 6 S. E. 943.

Some cases have stated the rule more guardedly, that a married woman is criminally liable for acts done in the husband's absence, if there is no evidence of coercion by the husband. Com. v. Murphy (1854) 2 Gray (Mass.) 510; Com. v. Tyron (1868) 99 Mass. 442. The test, according to the latter cases, is whether or not the acts were done under coercion by the husband. The existence of coercion was left to the jury as a question of fact, without any instruction as to presumption, in Rex v. Stapleton (1829) Jebb, C. C. (Eng.) 93.

The liability of a married woman for acts committed in the absence of

her husband is involved in many of the cases discussed in subdivision I. b, supra. If it appears that the married woman acted of her own free will in committing the criminal acts, her coverture is no defense, whether the acts were committed in the presence or absence of her husband. In other words, the presence or absence of the husband is immaterial, if in fact she acted of her own free will. But if that fact does not appear, then the presence or absence of the husband is material. His presence, according to the practical uniform view, raises a rebuttable presumption of coercion; there is no such presumption in his absence, according to one view, but proof of coercion is permitted; while, according to another view, the fact that the criminal acts were committed in the absence of the husband conclusively establishes that the wife was acting of her own free will and accord. In many cases, a married woman is held liable for criminal acts committed in the absence of the husband, without any discussion of these See sutheories as to presumption. pra, I. b.

The presumption as to coercion by the husband, when the acts are committed in the husband's absence, is discussed in II. a, 2, infra.

II. Presumption as to coercion.

a. Majority rule.

1. Acts committed in husband's pres

ence.

At common law, there is, according to the majority view, a presumption that a married woman acted under coercion by the husband in committing criminal acts in his presence, and she is, therefore, held not criminally responsible for the acts.

United States.-United States v. Terry (1890) 42 Fed. 317.

Iowa.-State v. Fitzgerald (1878) 49 Iowa, 260, 31 Am. Dec. 148, 3 Am. Crim. Rep. 1; State v. Kelly (1888) 74 Iowa, 589, 38 N. W. 503; State v. Harvey (1906) 130 Iowa, 394, 106 N. W. 939.

Maine. State v. Cleaves (1871) 59 Me. 298, 8 Am. Rep. 422.

Massachusetts. Com.

V.

Wood

(1867) 97 Mass. 225 (obiter); Com. v. Eagan (1869) 103 Mass. 71; Com. v. Daley (1888) 148 Mass. 11, 18 N. E. 579; Com. v. Adams (1904) 186 Mass. 101, 71 N. E. 78.

Michigan. People v. Wright (1878) 38 Mich. 744, 31 Am. Rep. 331.

Missouri.-State v. Ma Foo (1891) 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222; State v. Miller (1901) 162 Moɔ. 253, 85 Am. St. Rep. 498, 62 S. W. 692.

New Jersey. - State V. Martini (1910) 80 N. J. L. 685, 78 Atl. 12.

New York.-Seiler v. People (1879) 77 N. Y. 411; Goldstein v. People (1880) 82 N. Y. 231; People v. Ryland (1884) 97 N. Y. 126; Re Brown (1818) 3 N. Y. City Hall Rec. 56; Re Rooney (1818) 3 N. Y. City Hall Rec. 128.

North Carolina.-State v. Williams (1871) 65 N. C. 398; State v. Nowell (1911) 156 N. C. 648, 72 S. E. 590; State v. Seahorn (1914) 166 N. C. 373, 81 S. E. 687.

Ohio.-Davis v. State (1846) 15 Ohio, 72, 45 Am. Dec. 559 (obiter).

Pennsylvania. - Com. V. Dwyer (1903) 29 Pa. Co. Ct. 73; Com. v. Conrad (1871) 28 Phila. Leg. Int. 310.

South Carolina.-State v. Parkerson (1847) 32 S. C. L. (1 Strobh.) 169; State v. Houston (1888) 29 S. C. 108, 6 S. E. 943.

Tennessee.-MORTON V. STATE (reported herewith) ante, 264 (dictum) Virginia.-Uhl v. Com. (1849) 6 Gratt. 706.

Vermont.-State v. Potter (1869) 42

Vt. 495.

England. Reg. v. Brooks (1853) 6 Cox, C. C. 149, Dears. C. C. 184, 22 L. J. Mag. Cas. N. S. 121, 17 Jur. 400, 1 Week. Rep. 313; Reg. v. M'Ginnes (1870) 11 Cox, C. C. 391; Reg. v. Torpey (1871) 12 Cox, C. C. 45; Conolly's Case (1829) 2 Lewin, C. C. 229; Anonymous (1664) J. Kelyng, 21, 84 Eng. Reprint, 1068, 2 East, P. C. 559.

In State v. Harvey (1824) 3 N. H. 65, a proceeding in forcible entry and detainer against a husband and wife jointly, it was held that no fine could be imposed upon the wife, since it must be presumed that she acted under coercion by her husband; but, as to the balance of the proceeding, the

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