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proper to be taken into consideration (1). Per Holroyd, *J., Grindley's case, 1 Russell, 8. But see Carroll's case ; also Meakin's case, and Thomas's case, ante, p. 628; Pearson's case, ? Lew. 144.
COERCION BY HUSBAND.
In certain cases a married woman is privileged from punishment, upon the ground of the actual or presumed command and coercion of her husband compelling her to the commission of the offence. But this is only a presumption of law, and if it appears, upon the evidence, that she did not in fact commit the offence under compulsion, but was herself a principal actor and inciter in it, she must be found guilty. I Hale, P. C. 516.
In one case it appears to have been held by all the judges, upon an indictment against a married woman for falsely swearing herself to be next of kin, and procuring administration, that she was guilty of the offence, though her husband was with her when she took the oath. Dick's case, 1 Russell, 16. Upon an indictment against a man and his wife for putting off forged notes, where it appeared that they went together to a public-house to meet the person to whom the notes were to be put off, and that the woman had some of them in her pocket, she was held entitled to an acquittal. Atkinson's.case, 1 Russell, 20.
Evidence of reputation and cohabitation is in these cases sufficient evidence of marriage. Ibid. But where the woman is not described in the indictment as the wise of the man, the onus of proving that she is so, rests upon her. Jones's case, Kel. 37, 1 Russell, 20.
But where, on the trial of a man and woman, it appeared by the evidence that they addressed each other as husband and wife, and passed as such, and were so spoken of by the witnesses for the prosecution ; Patteson, J., held that it was for the jury to say whether they were satisfied that they were in fact husband and wife, even though the woman had pleaded to the indictment, which described her as a “single woman." The learned judge said she ought not have been so described. Woodward's case, 8 C. & P. 561 (a).
The presumption of coercion on the part of the husband does not arise unless it
appear that he was present at ihe time of the offence committed. 1 Hale, P. C. 45. Thus, where a wife by her husband's order and procurement, but in his absence, knowingly uttered a forged order and certificate for the payment of prize-money, all the judges held that the presumption of coercion at the time of uttering did not arise, and that the wife was properly convicted of uttering, and the husband of procuring. Morris's case, Russ. and Ry. 270 (b).
So where the husband delivered a threatening letter ignorantly, as [ *880 ] *the agent of the wife, she alone was held to be punishable. Hammond's case, 1 Leach, 447.
(1) Penn. d. M'Fall, Addis. 257.
The prisoner, Martha Hughes, was indicted for forging and uttering Bank of England notes. The witness stated that he went to the shop of the prisoner's husband, where she took him into an inner.room, and sold him the notes; that while he was putting them into his pocket, the husband put his head in and said, “Get on with you.” On returning to the shop he saw the husband, who, as well as the wife, desired him to be careful. It was objected, that the offence was committed under . coercion, but Thompson, B., thought otherwise. He said, the law out of tenderness to the wife, if a felony be. committed in the presence of her husband, raises a presumption, prima facie, and prima facie only, as is clearly laid down by Lord Hale, that it was done under his coercion, but it is absolutely necessary in such case that the husband should be actually present, and taking a part in the transaction. Here it is entirely the act of the wife ; it is, indeed, in consequence of a previous communication with the husband that the witness applies to the wife, but she is ready to deal, and has on her person, the articles which she delivers to the witness.
There was a putting off before the husband came, and it is sufficient if, before that time, she did that which was necessary to complete the crime. The coercion must be at the time of the act done; but when the crime has been completed in his absence, no subsequent act of his though it might possibly make him an accessary to the felony of the wife), can be referred to what was done in his absence. Hughes's case, 1 Russell, 18, 2 Lew. C. C. 229. But where, on an indictment against a woman for uttering counterfeit coin, it appeared, that the husband accompanied her each time to the door of the shop, but did not go in, Bayley, J., thought it a case of coercion. Conolly's case, 2 Lew. C. C. 229; Anon. Math. Dig. C. L. 262, S. C.
Where husband and wife were convicted on a joint indictment for receiving stolen goods, it was held that the conviction of the wife was bad, it not having been left to the jury to say whether she received the goods in the absence of her husband. Archer's case, 1 Moody, C. C. 143 (a), ante.
There are various crimes, from the punishment of which the wife shall not be privileged on the ground of coercion, such as those which are mala in se, as treason and murder. 1 Hale, P. C. 44, 45. “ Some of the books also except robbery.” Per Patteson, J., Cruse's case, 8 C. and P. 545 (b), infra. The learned judge afterwards said, “ it may be, that in cases of felony, committed with violence, the doctrine of coercion does not apply.”
In the above case, where a husband and wife were indicted under the 7 Win. 4 and i Vict. c. 85, s. 2, for the capital offence of inflicting an injury dangerous to life; Patteson, J., seemed of opinion that as the wife took an active part in the transaction, she might be found guilty of the offence with her husband, but said he would reserve the point, if, upon further consideration, he thought it necessary. The prisoners, however, were acquitted of the felony and convicted of an assault. See ante, p. 731, and post.
*And in offences relating to domestic matters and the govern- [ *881 ] ment of the house, in which the wife may be supposed to have a principal share, the rule with regard to coercion does not exist, as upon an indict
(a) 2 Eng. C. C. 143. (6) Eng. Com. L. Rep. xxxiv. 522.
ment for keeping a disorderly house, Hawk. P. C. b. 1, c. 1, s. 12, anle, p. 744, or gaming house. Dixon's case, 10 Mod. 336.
And the prevailing opinion is said to be that the wise may be found guilty with the husband in all misdemeanors, Arch. C. L. 15, 7th ed. 4 BI. Com. by Ryland, 29, (n.) Ingram's case, 1 Salk. 384.
But where a husband and wife were jointly indicted for a misdemeanor, in uttering counterfeit coin, and it appeared that the wife uttered the base money in the presence of her husband ; Mirehouse, C. S. (after consulting Bosanquet and Coltman, JJ.) held that she was entitled to an acquittal. Price's case, 8 C. and P. 19 (a). And see Conolly's case, ante, p. 880, which was also a case of misdemeanor. See also 8 C. and P. 21 n. (b).
However, in Cruse's case, ante p. 808, where the jury convicted a husband and wife of an assault, under the 7 Wm. 4 and 1 Vict. c. 85, s. 11; the judges, on a case reserved, affirmed the conviction, being unanimously of opinion, that the point with respect to the coercion of the wife did not arise, as the ultimate result of the case was a conviction for misdemeanor.
Where the wife is to be considered as merely the servant of her husband, she will not be answerable for the consequences of his breach of duty, however fatal, though she may be privy to his conduct. Thus, where the husband and wise were indicted for the murder of an apprentice of the husband, who had died for want of proper nourishment, Lawrence, J., held that the wife could not be convicted, for, though equally guilty, in foro conscientiæ, yet, in point of law, she could not be guilty of not providing the apprentice with sufficient food. Squire's case, i Russell, 16. See further ante, p. 666.
A woman cannot be indicted as an accessary by rescuing her husband. 1 Hale, P. C. 47. Nor can she be guilty of larceny in stealing her husband's goods, 1 Hale, P. C. 514, ante, p. 540. But if she and a stranger steal the goods, the stranger is liable. Tolfree's case, 1 Moody, c. c. 243 (6), ante, p. 541. So it has been held that she was not guilty of arson within the 7 and 8 Geo. 4, c. 30, s. 2, by setting her husband's house on fire. March's case, 1 Moody C. C. 182 (c), ante, p. 253.
(a) Eng. Com. L. Rep. xxxiv. 277. (6) 2 Eng. C. C. 243. (c) Id. 182.
in administering unlawful oaths, 663.
before the fact, to self murder, 722.
in piracy, 780.
in rape, 800.
from discharge of fire arms, 657.
of murder, &c. 866.
portation, &c. 863.
admissibility of evidence of, 141, et seq.
dying declarations of, 27.
ACQUIESCENCE. See Consent.
of public, to prove liability to repair new
wliether it will excuse a nuisance, 740,
proof of, 270.
was or was not quick with AD QUOD DAMNUM,
writ of, 515.
not support averment of uttering forged variance in statement of, id.
in bankruptcy, proof of, 272.
proof of letters of, 192.
examinations, touching offences within
jurisdiction of, 54.
venue in case of offences within jurisdic-
ADMISSION. See Confession.
where it does not preclude the necessity
of producing a written instrument,
by prisoner in case of bigamy, of for-
mer marriage, 278, 282.
name is forged, 461.
of publication of libel, 603.
of highway by parish, 521.
sufficient provocation to render homicide
by person convicted of crime, 123.
proof of, made in causes, 189.
proof of perjury upon, 759.
by peace officers in general, 689, a seq.
power to arrest under particular statutes,
metropolitan police act, 693.
what constitutes, 706.
offence at common law, 244.
proof of the burning, id.
proof that the house burnt is the
house of another, id.
proof of the malice and wilfulness,
offence by statute, 247.
setting fire to a dwelling-house, any pero
son being therein, id.
setting fire to houses, &c. id.
proof of the setting fire, &c. 248.
proof of the property set fire to, 249.
proof of the intent to injure or de-
setting fire to coal mines, 254.
setting fire to stacks, &c. id.
to ships with intent to murder, 255.
to ships with intent to destroy the
to ships of war, &c.id.
negligent burning, 257.
in cases of larceny of cattle, 234.
in stealing in a dwelling-house, 383.
what amounts to, 252.
what does not amount to, 259.
amicable contest, 260.
lawful chastisement, id.
self defence, id.
interference to prevent breach of the
defence of possession, 262.
execution of process by officers, &c.
summary conviction, bar to indictment, id.
conviction for, upon an indictment for
when a sufficient provocation in homi-
cide, 627, 671.
with intent to commit felony, 265.
on officers endeavoring to save ship-
wrecked property, &c. 266.
on Officers employed to prevent smug.
with intent to spoil clothes, id.
by workmen, 267.
on deer-keepers and their assistants, 382.
by poachers, 507, 711.
with intent to commit rape, 802.
with intent to rob, 849.
what constitutes, 823.
of smugglers, 853.
for disobeying subpæna, 108.
proof by, when waived, id.