CHAPTER III.

Exemption from Punishment arising from subjection to the power of others.

THE same sound principle which excuses those who have no mental will in the perpetration of an offence, protects from punishment those who commit crimes in subjection to the power of others, and not as the result of an uncontrolled free action proceeding from themselves.(b) Thus, if A. by force take the hand of B., in which is a weapon, and therewith kill C.; A. is guilty of murder, but B. is excused. If merely a moral force is used, however, as threats, duress of imprisonment, or even an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse. (c) And though the fear of having houses burnt or goods spoiled is no excuse, in law, for joining and marching with rebels, yet an actual force upon the person, and present fear of death may form such excuse, provided they continue during the time the party remains with the rebels.(d)

An idiot or lunatic, or a child so young as not to be punishable for his criminal act, when made use of for the purpose of committing crimes, is merely the instrument of the procurer, who will be answerable as a principal.(e)

This exemption may arise from certain public relations; obedience to existing laws being a sufficient extenuation of guilt before a municipal tribunal.(ƒ)

So it may arise from certain private relations, as that of husband and wife. A married woman is so much favored in respect of that power and authority which her husband has over her, that she shall not suffer any punishment for committing an offence against the laws of society

(b) 4 Black. Com. 27. 1 Hale's P. C.

43. Arch. Cr. Pl. 15.

(c) 1 Hale, 433. 1 East's P. C. 225. 1 Russ. on Cr. 15. Arch. Cr. Pl. 15. 4 Black. Com. 30, and note.

(d) 18 St. Tr. 393, 4. 1 Russ. on Cr. 15. 4 Black. Com. 30. 1 East's P. C.

71. As to acts done by persons in power of mobs, see 5 Car. & Payne, 133.

(e) 1 Hawk. P. C. ch. 31, § 7. 1 East's P. C. 228. 1 Russ. on Cr. 15. (f) 4 Black. Com. 28. 1 Russ. on Cr. Arch. Cr. Pl. 15.

15.

merely, by the coercion of her husband, or in his company, which the law construes a coercion. (g) The irresponsibility of the wife, however, for crimes committed by her through the compulsion of her husband does not extend to such offences as are mala in se, and prohibited by the laws of nature, or to those which are highly heinous.(h) Hence she may be punished for murder, though she commit the crime through coercion of the husband. (2) So as to manslaughter ;(k) and treason and robbery.(1)

But, so far as the nature of the offence is concerned, the exception to the general rule is not, that we are aware of, extended beyond this. At any rate, it is quite clear in regard to all other offences of the degree of felony, if committed by the wife through the husband's coercion she is excusable.(m) Yet the simple command of the husband will not excuse her if he be not present. (n) Even though he appear the very moment after the commission of the offence; and no subsequent act of his can excuse her. (o) As has been previously intimated, however, the presence of the husband is enough, ordinarily, to raise the presumption of coercion, without any command shown.(p) Thus, where a woman went from shop to shop uttering base coin, her husband accompanying her each time to the door, but not going in, she was held to have acted under her husband's coercion.(g)

The following case is full of illustration on this subject. 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, when she took him into an inner room and sold him the notes. That while he was putting them in 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 the court held otherwise, and said that the law, out of tenderness to the wife, if a felobe committed in the presence of the husband, raises a presumption, and prima facie only, as is clearly laid down by Lord Hale, that it was done under his coercion; but it is absolutely necessary that the husband should be actually present and taking part in the transaction. Here, it

ny

is entirely the act of the wife. It is indeed in consequence of a previous communication with her 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 his wife,) can be referred to what was done in his absence. (r)

In regard to offences below the degree of felony, it is said to be the prevailing opinion in England, that the wife may be punished jointly with her hushand for all misdemeanors committed by her, though in the presence and by the coercion of her husband. (s) But Blackstone has not stated the exception so broadly. He seems to restrict it to those inferior offences which relate to the domestic economy and management of the house, as keeping a brothel, &c. The reason given by him why the wife is responsible in such cases is, that these are offences in which the wife has a principal share; and are also such offences as the law presumes to be generally conducted by the intrigues of the female sex.(t) We find no American case recognizing any distinction like the one noticed, between felonies and misdemeanors, as such merely. On the contrary, it has been expressly decided in Massachusetts, that where a wife committed an assault and battery by the command and in the presence of the husband, she was not responsible.(u) In this case the court observe, that "the exceptions to the general rule exempting the wife as to crimes committed by her through the coercion of the husband, consist of crimes forbidden by the law of nature, which are mala in se, and some where the wife may be presumed the principal agent." (v) Indeed, it may be well doubted whether, in this country at least, misdemeanors stand upon any different principle, in respect to the wife's responsibility, from felonies.

For the offence of keeping a bawdy house, she is doubtless responsible with her husband. (w) So it has been held with regard to the offence of keeping a gambling house.(x) But the responsibility rests, not upon any

(r) Russ. & Ry. C. C. 270. Roscoe's Cr. Év. 785. 1 Russ. on Cr. 18.

(s) Arch. Cr. Pl. 16, 17. See 4 Black. Com. 29, note. Matt. Dig. 263.

(t) 4 Black. Com. 29. See also 1 Hawk. P. C. ch. 1, § 12. 10 Mod. 63. 1 Salk. 384. 1 Russ. on Cr. 16, 17.

29.

(u) 10 Mass. R. 152.

(v) Id. ib.

(w) 1 Russ. on Cr. 16. 4 Black. Com. 1 Hawk. P. C. ch. 1, § 12.

(x) 10 Mod. 335.

principle applicable to misdemeanors generally, but upon her presumed voluntary participation in these particular offences.

That the wife acted by coercion of the husband is mere matter of legal presumption. And if, upon the evidence, it clearly appear that she was not coerced to the offence by her husband, but that she acted voluntarily in it, or was the principal inciter of it, though the husband was present, and concerned, she is punishable as well as he.(y) Thus, a married woman who swore falsely that she was next of kin to a person who died intestate; and so obtained administration of his effects, was held responsible for the offence though her husband was with her when she took the oath.(z) And if she commit a theft, of her own voluntary act, or by the bare command of her husband, without his presence, she is responsible. (a) Where a husband delivered a threatening letter ignorantly, as the agent of the wife, she was held to be the guilty party and the husband was excused.(b) If stolen goods are received by a wife in the absence of the husband, and concealed in the house without his knowledge, she alone may be punishable for the offence; but if the husband's ignorance of the transaction be not satisfactorily proved, the law will, in most cases, impute the receiving to him. (c) But where the husband and wife were convicted jointly of receiving stolen goods, it was held that the conviction of the wife could not be sustained (though she appeared to have been most active) because it had not been submitted to the jury to say whether the husband was absent when the goods were received. (d)

It is hardly necessary to mention that in every instance where the wife offends alone, without the company and coercion of her husband, she is responsible, as much as if she were unmarried. (e) This must be understood, however, with reference to such prosecutions as are strictly criminal in their character. For if a wife incur a forfeiture by violating a penal statute, the husband may be made a party to an action for the same, and is liable to answer whatever shall be recovered. (ƒ)

The wife is not answerable for her husband's breach of duty, however fatal, though she be privy to his misconduct, if no specific legal duty be cast upon her, and she be merely passive.(g) By other writers the rule

is laid down as follows: "Where the wife is to be considered merely the servant of the husband, she will not be answerable for the consequences of his breach of duty, however fatal, though she may be privy to his conduct."(h) These propositions are both derived from the following case Squire and his wife were indicted for the murder of Squire's apprentice boy. It appeared on the trial that the boy died from want of food and nourishment. Upon which 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 she was not guilty of any breach of duty in neglecting to do so; though if the husband had allowed her 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, though in the tribunal of conscience the wife was 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.(i)

A wife is not punishable criminally for stealing her husband's goods; because she and her husband are regarded as one person, in law.(k) But if she and a stranger steal the goods, the stranger is responsible.(7) If, however, a wife deliver to a stranger goods stolen by the wife from her husband, and the stranger receives them upon the supposition that the wife was acting by consent of the husband, the stranger is not guilty of a crime; but he may be prosecuted for a trespass. (m) If a married woman deliver to her adulterer her husband's goods, the adulterer is responsible criminally.(n) So, if a man elope with another's wife and take goods belonging to the husband, though he do this by consent of the wife, he is guilty of larceny; for in these and all similar cases he has no reason for presuming the husband's consent. (o)

A husband and wife alone cannot be found guilty of a conspiracy; for in law they are but one person.(p)

The wife cannot be punished as an accessary for receiving her husband, knowing that he has committed a felony; nor for receiving a felon jointly with her husband.(g) But if the wife alone, the husband being

(h) 1 Russ. on Cr. 16. Roscoe's Cr. Ev. 785.

(i) 1 Russ. on Cr. 16.

(k) Id. 19. Roscoe's Cr. Ev. 475, 6, 787.

(1) 1 Moody's C. C. 243. Roscoe's Cr. Ev. 787, 475, 6. 6 Cowen, 572. (m) 6 Cowen, 572, 5.

(n) Id. ib.

(0) Id. ib. And see 1 Russ. on Cr. 19. 1 Moody's C. C. 243, 376. Roscoe's Cr. Ev. 475.

(p) 1 Hawk. ch. 72, § 8. Arch. Cr. Pl. 17.

(q) 1 Hale's P. C. 47. Arch. Cr. Pl. 17. 1 Hawk. ch. 1, § 10.