right to proceed against the husband In some cases it is stated that if a man and wife jointly commit a felony, the wife, being presumed in law under the husband's coercion and control, is entitled to an acquittal. Rex v. Knight (1823) 1 Car. & P. (Eng.) 116. In Rex v. Price (1837) 8 Car. & P. (Eng.) 19, upon a joint indictment for a misdemeanor in uttering counterfeit coin, the wife was held entitled to an acquittal, as it appeared she uttered the money in the presence of her husband. A similar holding appears in Reg. v. Woodward (1838) 8 Car. & P. (Eng.) 561 (a joint indictment for larceny). The presumption that the wife acted under coercion by her husband is a rebuttable one. United States.-United States V. Terry (1890) 42 Fed. 317. Alabama.-Rather v. State (1834) 1 Port. 132. Iowa.-State v. Fitzgerald (1878) 49 Iowa, 260, 31 Am. Dec. 148, 3 Am. Crim. Rep. 1; State v. Harvey (1906) 130 Iowa, 394, 106 N. W. 938. Maine. State v. Cleaves (1871) 59 Me. 298, 8 Am. Rep. 422. Eagan Massachusetts. Com V. (1869) 103 Mass. 71; Com. v. Hopkins (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. Missouri.-State v. Ma Foo (1891) 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222. 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. 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.-Tabler v. State (1877) 34 Ohio St. 127. Pennsylvania. - Com. V. Dwyer (1903) 29 Pa. Co. Ct. 73. 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. Wisconsin. Miller v. State (1870) 25 Wis. 384. England. Reg. v. M'Claren (1849) 3 Cox, C. C. 425; Reg. v. Brooks (1853) 6 Cox, C. C. 148, Dears. C. C. 184, 22 L. J. Mag. Cas. N. S. 121, 17 Jur. 400, 1 Week. Rep. 313; Reg. v. Torpey (1891) 12 Cox, C. C. 45; Reg. v. Williams (1878) 42 U. C. Q. B. 462. The court in Reg. v. McGregor (1895) 26 Ont. Rep. 115, expresses an opinion that the presumption that the wife acted under the coercion of her husband is a rebuttable one; but in that case a statute expressly provided that there should be no such presumption, and the case was finally decided under the statute. See statute infra, III. b. In some English cases this presumption has been held not rebuttable, in joint indictments of husband and wife. In a case referred to in a note to Rex v. Knight (1823) 1 Car. & P. (Eng.) 116, a husband and wife were jointly indicted for a robbery; it appeared that the husband was reluctant, but his wife compelled him to go with her and commit the robbery; the judge directed the jury to acquit the woman on the ground of coercion, saying that it was a presumption of law which he and they were bound by, however, in fact, the coercion might be the contrary way. After referring to a statement of Lord Hale that this presumption of coercion is rebuttable, it is further stated in this note that, "though this appears to have been the opinion of Lord Hale, the modern practice is, on finding by the evidence that the offense was joint, for the court to direct the acquittal of the wife, without at all considering or inquiring how far she was or was not the principal actor or inciter of the offense. Indeed, if Lord Hale's rule was acted upon, a wife could hardly ever be acquitted, unless she was under actual compulsion." According to the great weight of authority, however, the presumption is rebuttable. It has been stated that the presumption that the wife acted under duress is rebuttable by slight circumstances. State V. Cleaves (1871) 59 Me. 298; MORTON v. STATE (reported herewith) ante, 264. In order to rebut the presumption, it is not necessary to show that the husband disapproved of the wife's act. State v. Ma Foo (1891) 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222. It has been stated that the wife's conduct, even in the husband's presence, may be such as alone and by itself to overcome the presumption. Com. v. Adams (1904) 186 Mass. 101, 71 N. E. 78. An instruction to the jury that if they believed the facts and circumstances, transpiring at the time, show that the wife was not acting under the coercion and control of her husband, but that she acted from her own free and uncontrolled will, coverture is no defense, was held proper in Uhl v. Com. (1849) 6 Gratt. (Va.) 706. Where a wife is called by her husband as witness in a prosecution of the husband, and testifies voluntarily, notwithstanding a statutory provision that neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint, or other criminal proceeding against the other, there is no presumption of coercion by the husband, and the wife is not relieved of criminal liability for perjury committed in such testimony, by reason of her coverture. Com. v. Moore (1894) 162 Mass. 441, 38 N. E. 1120. See Smith v. Meyers (1898) 54 Neb. 1, 74 N. W. 277, infra, II. b. ual case. In a prosecution for robbery, evidence that the wife took the victim by the throat and told him to keep still, while her husband rifled his pockets, is sufficient to authorize a finding that she was not acting under the coercion of her husband in the commission of the offense charged. People v. Wright (1878) 38 Mich. 744, 31 Am. Rep. 331. In Seiler v. People (1879) 77 N. Y. 411, where, upon the trial of a married woman for stealing goods from a store, it appeared that the husband remained in the street from two to three hundred feet from the store, it was held to be for the jury to say whether that fact did not rebut the presumption that the defendant was coerced by her husband. Compare with Conolly's Case (1829) 2 Lewin, C. C. (Eng.) 229, infra. A finding that the wife acted without coercion by her husband, in an indictment for forgery by raising a check, is sustained by evidence that she first suggested to her husband and another the idea of obtaining the check; that she went out with her husband, and returned after an absence of several hours with a check for a small sum, which she had procured, and delivered the same to her husband, and the erasure in the check was made in her presence; that the check was obtained upon representations by her that she wished to purchase the same, because the postoffice was closed, and she could not obtain a money order there, and that she desired to send it that evening to a relative,-a representation which was false; and that the husband was not present when the wife secured the check, and it was proved that she subsequently received a considerable portion of the proceeds of the check as raised, as her share for her participation in the crime. There was no direct evidence that she acted under the influence of her husband, or that he, directly or otherwise, compelled her to engage in the transaction. People v. Ryland (1884) 97 N. Y. 126. The evidence which is sufficient to rebut the presumption depends, of course, upon the facts of the individ4 A.L.R.-18. In a prosecution for receiving stolen goods, it was held in State v. Houston (1888) 29 S. C. 108, 6 S. E. 943, that a wife is not, as a matter of law, guilty, because, after being coerced into giving assistance to her husband, she may have become the most active in consummating the offense; the question is held in such case to still depend on the cause of her increased activity, not upon the fact of such activity, since the presence and constraint of her husband may still be the cause, and not her own wickedness. From the foregoing cases, it appears that a married woman is not criminally responsible for criminal acts committed under coercion by the husband. When such acts are committed in the husband's presence, there is a presumption that the wife acted under coercion, but this is subject to be rebutted. Some cases have not clearly stated these principles. For example, in Com. v. Neal (1813) 10 Mass. 152, 6 Am. Dec. 105, the general doctrine is stated to be "that a feme covert incurs no legal guilt by the commission of civil offenses by the coercion of her husband, or even when in his presence." Whether the court in Com. v. Neal means to say that the wife is not guilty for an act committed in the husband's presence, because of this presumption, is problematical. In a prosecution of the husband for an offense committed by the wife, it is stated obiter in Mulvey V. State (1869) 43 Ala. 316, 94 Am. Dec. 684, that as a general principle, when the wife acts under the coercion of the husband in misdemeanors, she is not to be held responsible for her acts; criminally, she is not guilty. In other prosecutions of the husband nothing is said about the liability of the wife, except that she is presumed to have acted under the husband's control; it is stated merely that the husband is guilty. Hensley v. State (1875) 52 Ala. 10, 1 Am. Crim. Rep. 465; Com v. Gannon (1867) 97 Mass. 547; Com. v. Pratt (1879) 126 Mass. 462; State v. Boyle (1882) 13 R. I. 537. Thus, in Hensley v. State (Ala.) supra, it is stated that an offense not malum in se, committed by a married woman in the presence and with the knowledge of her husband, is presumed to have been committed by his authority, and he is punishable by indictment for it if it be an indictable offense. 2. Acts committed in husband's absence. The substantive question of liability of a married woman for criminal acts committed in the absence of her husband (discussed supra, I.) is very closely connected with the question of presumptions. It has been held that there is no legal presumption that acts done in the husband's absence are done under his coercion or control. Com. v. Murphy (1854) 2 Gray (Mass.) 510; Com. v. Butler (1861) 1 Allen (Mass.) 4. In Quinlan v. People (1864) 6 Park. Crim. Rep. (N. Y.) 14, a charge to the effect that if the husband was present at the time the intent to commit the offense was formed, the law presumed the wife acted under his compulsion, but if she formed the intent to commit the crime and actually commenced its consummation in his absence, and without his knowledge, the fact that he afterwards arrived and aided in completing it does not create the presumption that she acted under his coercion, was held correct. The bare command of the husband or his procurement does not raise the presumption of coercion. Seiler v. People (1879) 77 N. Y. 411. In other words, the wife, in committing criminal acts in the husband's absence, is presumed to have acted voluntarily. State v. Shee (1882) 13 R. I. 535. But it has been held that this presumption, like the presumption of coercion, may be rebutted, and a married woman may show that, though her husband was absent, she nevertheless acted under his coercion. Ibid. See supra, I. c, for cases which deny that coverture is a defense, where a married woman commits criminal acts in the husband's absence. 3. What constitutes presence or absence. When the husband is present, within the meaning of the rule that a presumption of coercion arises, is a question that presents some difficulties. The general rule does not require an immediate presence of the husband, in the sense that he is within sight of the wife. It has been stated that if the husband "was near enough for the wife to act under his immediate influence and control, though not in the same room," he is not absent within the meaning of the law. Com. v. Burk (1858) 11 Gray (Mass.) 437. In Com. v. Welch (1867) 97 Mass. 593, the court refused a request to rule "that if her husband were in the same or an adjoining room, or in the same house, yard, or immediate vicinity, when the sales were made, she would not, under the circumstances of this case, be liable criminally for such sales." But the court, instead, instructed the jury to the effect "that if the defendant made sales in her husband's presence, or while he was on the premises or near at hand, she was to be presumed to be acting under his influence and coercion, but that there was no such presumption as to any sale, when he was not present or about the premises; and if she made three or more separate sales when he was absent from home, she would be responsible criminally therefor." These instructions of the trial court were approved upon appeal to the supreme court. It is stated in Com. v. Munsey (1873) 112 Mass. 287, that, "in order to establish the fact of his presence, it does not seem to be necessary to show that the act was done literally in his sight. If the husband were near enough for the wife to be under his immediate influence and control, though not in the same room, it is sufficient. . . . If he were on the premises and near at hand, a momentary absence from the room, or a momentary turning of his back, might still leave her under his influence." Where, in the prosecution of a married woman for keeping a tenement used for the illegal sale of intoxicating liquors, the evidence showed three sales, two in the presence of the accused's husband, and a third when he was in the yard outside the kitchen where the sale was made,-an instruction to the jury, with reference to the last sale, that "no presumption arises that sales made by the wife when the husband is on the estate, or on the premises not in her presence, are made under constraint of the husband, and the defendant would be liable for any such sale so made," was held error. The court states: "We think that the jury must have understood this language as meaning that if, at the moment of the sale, the husband was not immediately and visibly in presence of the wife, she would be liable for it as matter of law, although he was on the premises. Thus construed, the instructions went too far. . . . It is true that if the wife acts in the absence of her husband, there is no presumption that she acts under his coercion." Com. v. Flaherty (1886) 140 Mass. 454, 5 N. E. 258. In Com. v. Gormley (1882) 133 Mass. 580, an instruction to the jury, in a prosecution for illegal sale of intoxicating liquor, that if the defendant sold the liquor in a house occupied by herself and her husband, with his approval, and in his presence, and under his direction, she cannot be held liable, was held sufficiently favorable to the defendant, and it was held further in this case that the defendant was not entitled to an instruction that if the sale was made in such house, and under the general directions of the husband, although he was at the time in an adjoining room, she cannot be held liable, where the evidence showed that the husband was in an adjoining room, "sick upon a bed, and that the door between the shop and was open." The court states that, under such circumstances, there is no conclusive presumption of law that she, in selling intoxicating liquor, was acting under the immediate influence and control of her husband. An instruction to the jury that it is not necessary to show that the act was done literally in sight of the husband to raise a presumption of coercion, but it is sufficient to raise presumption if it was done near enough to the husband so that the wife was under his immediate control or influence, is stated to be such as not to give an accused woman any right to complain, in State v. Nowell (1911) 156 N. C. 648, 72 S. E. 590. An instruction in a prosecution for making illegal sales of liquor that, if the husband was near enough to see, hear, or know that room the wife was making such sales, she: was not liable and must be acquitted, was held to be too favorable for the defendant. In Com. v. Daley (1888) 148 Mass. 11, 18 N. E. 579, the court states that "as the presumption of coercion was merely a disputable one, and might not prevail in the minds of the jury, in view of the testimony and the circumstances of the case," this instruction was too favorable to defendant. The jury were charged by the trial court in State v. Fertig (1896) 98 Iowa, 139, 67 N. W. 87, that it is not necessary that the husband should be in the actual physical presence of the wife, before there be a presumption that the wife is coerced; that if the husband was about the premises, even though in another room, or in another part of the premises, the presumption would still prevail if she was so immediately near him as fairly to be held under his control, or in his presence. No complaint was made of these instructions. Conolly's Case (1829) 2 Lewin, C. C. (Eng.) 229, the court directed the jury to infer that a wife was acting under the coercion of her husband, and therefore was not guilty of uttering base coin, where the evidence showed she had gone from house to house uttering the coin, and that her husband accompanied her to the door, but did not go in. Compare with Seiler v. People (1879) 77 N. Y. 411, supra. In The liability of a married woman for crime committed by her is very clearly stated in Com. v. Daley (Mass.) supra, as follows: "When a married woman is indicted for a crime, and it is contended in defense that she ought to be acquitted because she acted under the coercion of her husband, the question of fact 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. To aid in determining this question of fact, the law holds that there is a presumption of such coercion from his presence, at the time of the commission of the crime; this presumption, however, is not conclusive, and it may be rebutted. And in order to raise this presumption, it is also established that the husband's presence need not be at the very spot or in the same room, but it is sufficient if he was near enough for her to be under his immediate control or influence. 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 where the wife did not act in the direct presence of her husband or under his eye, it must usually be left to the jury to determine incidentally whether his presence was sufficiently immediate or direct to raise the presumption. But the ultimate question, after all, is whether she acted under his coercion or control, or of her own free will, independently of any coercion or control by him; and this is to be determined in view of the presumption arising from his presence, and of the testimony or circumstances tending to rebut it, if any such exist." According to this case, it cannot be said, as a matter of law, that if the husband is on the premises and in the house where the criminal act took place, it would be sufficient to justify the presumption of coercion. The existence of coercion in such case is the question of fact for the jury. In the prosecution of a married woman for illegal sales of liquor, in which the testimony was that on several occasions the husband, though about the premises, at the barn, or well, or near by, was not actually present when the sales were made, the defendant asked the court to instruct the jury that, if the husband was so near that he might have exercised a control over her, it was to be presumed that she acted under his influence and direction, and they should acquit her. The court refused this request, and the appellate court held rightly so, "for there was evidence, not only that the sales were made when the husband was absent, but also that, when he was present, hers was the active or controlling mind. The court, however, not only refused to charge as requested, but did in fact charge |