case that she and her husband should be at a loss of four or five pounds. Coltman, J., told the jury that "if the husband received the property, knowing it to be stolen, and if the wife received it from him with the like knowledge, and with the purpose of aiding and assisting him in the object which he had in view in receiving it, by turning it to pecuniary profit or in other like manner, although prima facie she might be supposed to be acting under the coercion of her husband, that was rebutted by the active part which she took in the matter with the intention above mentioned. But if the part she took was merely for the purpose of concealing her husband's guilt, and of screening him from the consequences, then she ought to be acquitted. A wife cannot be convicted of harboring her husband, when *36] he has committed a felony, and the mere circumstance of her attempting to conceal what may lead to his detection appears to come within the same principle." (u) On an indictment against a wife for receiving stolen goods, it appeared that her husband stole the goods from a shop, and delivered them into her hands. Whether the articles were stolen at one or at several times, or delivered to the prisoner at one or at different times, did not appear. The husband absconded, his house was searched, and a box taken from the prisoner, after a struggle on her part to retain it. It contained pawn-tickets which related to the stolen goods. Several of these tickets had been given for articles pledged by the prisoner, who falsely stated as to some that they were birthday presents, and as to others that they were articles in which she dealt. In two instances the prisoner had sent persons to pledge some of the articles, and had received the pawn-tickets and money lent by the pawnbrokers. The jury were told that, as her husband had delivered the stolen articles to the prisoner, the law presumed that she acted under his control in receiving them; but that this presumption might be rebutted: if therefore they were satisfied that at the time when the prisoner received the articles she knew that they were stolen, and in receiving them acted not by reason of any coercion of her husband, but voluntarily, and with a fraudulent intention, she might be found guilty; and on her being found guilty the questions were reserved, whether the direction was right, and whether on the evidence there was any case for the jury; and it was held that the case failed on both points; if there had been plenty of evidence there would have been no case to go to the jury; but it appeared that there was no evidence at all. (v)

Where on an indictment for larceny it appeared that the goods were found in the house of the prisoner's husband, who was a blind man, and when they were found the prisoner said she had bought them a long time before; Erle, J., said that if the prisoner had said nothing, and the goods had simply been found in the house of the husband, there would have been no evidence to go to the jury. But as she said she bought the goods, it must be left to the jury to decide whether the goods were in the possession of the prisoner or her husband; and the jury were told that if they were of opinion that the goods were in the possession of the wife without the consent and control of her husband, they must find her guilty.(w)

The prisoner was indicted together with her husband and one Prishous for burglary and receiving. The jury found Prishous guilty of housebreaking, and the prisoner and her husband of receiving. Part of the stolen property was found in the house *where the prisoner and her husband lived together, and the evidence warranted the jury in convicting the husband of receiving; but the

*37]

(u) Reg. v. M'Clarens, 3 Cox C. C. 425. The wife was acquitted.

(v) Reg. v. Brooks, 1 Dears C. C. 184. This decision is clearly right on the ground that there was no evidence whatever as to the guilty knowledge or conduct of the prisoner at the time the goods were received. Parke, B., said that, as the prisoner received the goods from her husband, "it is difficult to see how she could be guilty of this offence." With all deference, it is perfectly easy to suggest cases where a wife may be convicted of receiving stolen goods from her husband. Suppose she incites him to steal a diamond necklace for her, and he does so in her absence, delivers it to her, and she wears it; or, suppose a thief brings stolen goods to a house, and the husband declines to receive them, but is induced by the wife so to do, and afterwards the husband delivers them to the wife; it cannot be doubted that in these and the like cases she may be convicted, for the plain reason that she is acting in no way under his coercion. C. S. G.

(w) Reg. v. Banks, 1 Cox C. C. 238.

only evidence which affected the prisoner was that, some time after the robbery, in the absence of her husband, she produced a quantity of the stolen property, and said it was to be destroyed, and said she had been changing some foreign money, and thought she was going to be taken up for it, and asked a young woman to come down, if she were taken, and say a foreign captain had given her part of the stolen property. It was contended that there was no evidence that she received the property either in the absence of, her husband or from any other person than him; and that if there was evidence for the jury, the question would be whether she received it from him, and if not, whether she received it in his absence; but Martin, B., ruled that there was evidence for the jury, and did not leave either of these questions to them. It was held, however, that the questions ought to have been left to the jury, and it was perfectly consistent with the facts that the goods might have been received by the husband at his own house, and so have come into the possession of the wife through her husband in a manner that did not render her liable to be convicted.(x)

Where on an indictment against husband and wife for jointly receiving stolen fowls, it appeared that the fowls were found in the husband's house, and the wife said she had bought part from people who came to the house in his absence, and that her husband bought some at Shrewsbury market on Wednesday; and the husband afterwards said that he was not out of the place where he resided on the Wednesday, and had bought "the fowls" from the person who stole them; so that the evidence showed either a joint receiving by both or a separate receiving by each in the absence of the other, and the jury found both guilty; it was held that, assuming the receiving to have been joint, the wife was entitled to be acquitted, as the offence was committed in her husband's presence; and assuming the receiving to have been separate, the offence against both was not proved as laid. and that the husband was rightly convicted, but the wife not.(y)

Upon an indictment against husband and wife for jointly receiving stolen goods, the jury found that the wife received them without the control or knowledge of and apart from her husband, and that the husband afterwards adopted his wife's receipt; and it was held that, upon this finding, the conviction of the husband could not be supported. The word "adopted" might mean that the husband passively consented to what his wife had done without taking any active part in the matter, and in that case he would not be guilty of receiving. Or, it might mean, that he did take such active part; but this rigid construction ought not to be put upon the word "adopted."(z) But where the thief delivered the stolen property *to the prisoner's wife in his absence, and she then paid sixpence on account, [*38 but the amount to be paid was not then fixed; and afterwards the prisoner and the thief met, agreed on the price, and the prisoner paid the balance; it was held that the receipt was not complete till the price was fixed, and the money paid, and consequently that the prisoner was rightly convicted of receiving the stolen property.(y)

Where a jury found a wife guilty of stealing from the person, and her husband guilty of receiving the property stolen knowing it to have been stolen, and also found that the wife acted voluntarily and without any restraint on the part of the husband, and that he received the property from his wife knowing it to have been

(z) Reg. v. Wardroper, Bell C. C. 249 Martin, B., at the trial rightly treated the indictment as joint and several. See 14 & 15 Vict. c. 100, s. 14; but there was no evidence of a receipt by the wife in the absence of her husband, so as to bring the case within that clause.

4) Reg. v. Matthews, 1 Den. C. C. 596. There was nothing to show any activity on the part of the wife at the time of the receipt. See now the 24 & 25 Vict. c. 96, s. 94, by which persons charged with a joint receipt of stolen property may become convicted of separate receipts.

(z) Reg. v. Dring, D. & B. 329.

It was doubted in this case, whether sec. 14 of the 14

& 15 Vict. c. 100, applied to successive receipts of the whole property stolen; but sec. 17 of the Statute of Frauds, 29 C. 2, c. 3 is, "except the buyer shall accept part of the goods so sold, and actually receive the same," and no one ever doubted that a receipt of the whole was within this clause.

(yy) Reg. v. Woodward, 1. L. & C. 122.

stolen by her; it was held that the husband was rightly convicted of feloniously receiving the property from his wife.(zz)

Where the wife is to be considered merely as 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. C. Squire and his wife were indicted for the murder of a boy, who was bound as a parish apprentice to the husband, and it appeared in evidence that both prisoners had used the apprentice in a most cruel and barbarous manner, and that the wife had occasionally committed the cruelties in the absence of her husband. But the surgeon who opened the body deposed that, in his judgment, the boy died from debility and want of proper food and nourishment, and not from the wounds, &c., which he had received. 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 that 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 foro conscientia the wife was equally guilty with the husband, yet in point of law she could not be said to be guilty of not providing the apprentice with sufficient food and nourishment.(a)

In inferior misdemeanors a wife may be indicted, together with her husband; (b) *39] and she may be punished with him for keeping *a bawdy house; for this is an offence as to the government of the house in which the wife has a principal share; and also such an offence as may generally be presumed to be managed by the intrigues of the sex. (c) So a wife might be jointly convicted with her husband of an assault, upon an indictment against both, for feloniously inflicting a bodily injury dangerous to life, under 1 Vict. c. 88, s. 5.(d) But where the husband and wife were indicted for a misdemeanor, in uttering counterfeit coin, it was held that the same rule which applied to felonies should apply to that case. (e) But a prosecution for a conspiracy is not maintainable against a husband and wife only; because they are esteemed but as one person in law, and are presumed to have but one will.(ƒ)

In all cases where the wife offends alone without the company or coercion of her husband, she is responsible for her offence as much as any feme sole. (g) Thus she (22) Reg. v. M'Athey, 1 Leigh & C. 250.

(a) Rex v. Squire and his wife, Stafford Lent Assizes, 1799, MS.

(b) See Reg. v. Martin, & A. & E. 481 (35 E. C. L. R.) where husband and wife were convicted of obtaining goods by false pretences, and the judgment reversed on another ground. There is no doubt that in all misdemeanors a wife may be jointly convicted with her husband, as she may be proved to have acted voluntarily; but I find no authority that the same rule as to coercion, which applies to felonies, does not extend to misdemeanors. On the contrary, Rex v. Price, 8 C. & P. 19 (34 E. C. L. R.) and Anon., Matth. Dig. Cr. Law 262, show that the rule applies to the misdemeanor of uttering base coin; and the reason given in Rex v. Dixon, 10 Mod. 335, and Reg. v. Williams, Salk. 384, as to the keeping of gaming and bawdy houses, that the wife may probably have as great, nay, a greater share in the criminal management of the house, than the husband, tends to show, that, in order to convict the wife she must be acting voluntarily, and not under coercion. In Reg. v. Cruse, 8 C. & P. 541 (34 E. C. L. R.) the wife had taken a very active part. Reg. v. Williams, and Reg. v. Ingram, Salk. 384, were in arrest of judgment, and therefore the Court would presume, if necessary, that the wife had acted voluntarily; and Rex v. Dixon was on demurrer, and the Court would, and it seems did, hold the indictment good, because it might be proved that the wife was not under coercion. There is no authority, therefore, that the rule does not extend to misdemeanors, and the tendency of the authorities certainly is that it does. C. S. G.

(c) 1 Hawk. P. C. c. 1, s. 12; Williams's case, 10 Mod. 63; Salk. 384, s. c., in arrest of judgment. So also for keeping a gaming house: Rex v. Dixon and wife, 10 Mod. 335, on demurrer, where by the indictment the husband and wife et uterque eorum were charged with the offence. See 1 Bur. R. 600.

(d) Reg. v. Cruse, 2 Moo. C. C. R. 53; s. c., 8 C. & P. 541 (34 E. C. L. R.).

(e) Reg. v. Price, 8 C. & P. 19 (34 E. C. L. R.), Mirehouse, C. S., after consulting Bosanquet and Coltman, J. J. and vide Matth. Dig. Cr. Law 262. Anon., s. P. per Bayley, J. (ƒ) 1 Hawk. P. C. c. 72, s. 8; 38 E. 3, 3.

(g) 4 Blac. Com. 29. But if a wife incur a forfeiture by a penal statute, the husband may be made a party to an action or information for the same, and shall be liable to answer what shall be recovered thereon: 1 Hawk. P. C. c. 1, s. 13.

may be indicted alone for a riot;(h) may be convicted of selling gin against the injunctions of the 9 Geo. 2, c. 23,(i) or for recusancy.(k) And she may be indicted for being a common scold;(1) for assault and battery;(m) for forestalling;(n) for forcible entry ;(0) or for keeping a bawdy house, if her husband do not live with her;(p) and for trespass or slander.(g) And she may also be indicted for receiving stolen goods of her own separate act without the privity of her husband; or if he, knowing thereof, leave the house and forsake her company, she alone shall be guilty as accessory;(r) and though in a serious offence, such as that of sending threatening letters, the husband be an agent in the transaction, yet if he be so ignorantly, by the artifice of the wife, she alone is punishable.(s) And generally a feme covert shall answer as much as if she were sole for any offence not capital against the common law or statute; and if it be of such a nature that may be committed by her alone, without the concurrence of her husband, she may be punished for it without the husband, by way of indictment; which being a proceeding grounded merely on the breach of the law, the *husband shall not be included in it for any offence to which he is in no way privy.(t)

it

[*40 It is no excuse for the wife that she committed the offence by her husband's order and procurement, if she committed it in his absence; at least it is not to be presumed in such case that she acted by coercion S. Morris was tried for uttering a forged order, knowing it to be forged, and her husband for procuring her to commit the offence; and it appeared that her husband ordered her to do it, but that she uttered the instrument in his absence. Upon a case reserved, the judges held that the presumption of coercion at the time of the uttering did not arise, as the husband was absent at that time; and that the wife was properly convicted of the uttering, and the husband of the procuring.(u) In a previous case, where the prisoner was indicted for forgery and uttering Bank of England notes, the principal witness stated, that, in consequence of a conversation which he had had some time before with the prisoner's husband, he went to the husband's shop; that the husband was not present, but that he saw the prisoner, who beckoned him to go into an inner room; that she followed him into the room, and that he there told her what her husband had said to him; upon which they agreed about the business, and he bought of her three two pound notes, at one pound four shillings each; that he paid her for the notes, and was to receive eight shillings in change; and that when he was putting the notes into his pocket-book, and before he had received the change, the husband looked into the room, but did not come in or interfere with the business further than by saying, "Get on with you." After this the witness and the prisoner returned into the shop where the husband was; the prisoner gave him the change, and both the prisoner and her husband cautioned him to be careful. The counsel for the prisoner objected that she acted under the coercion of her husband; that the evidence would have been sufficient to have convicted the husband, if both the husband and wife had been upon their trial; and that therefore the prisoner ought to be acquitted.(v) But Thomson, B., said, I am very clear as to the law on this point. The law, out of tenderness to the wife, if a felony be committed in the presence of the husband, raises a presumption

(h) Dalt. 447.

(*) Croft's Case, Str. 1120. And she may be committed for disobeying an order of bastardy: Rex v. Ellen Taylor, 3 Burr. 1679.

(k) Hob. 96; Foster's case, 11 Co. 62; 1 Sid. 410; Sav. 25.

(4) Foxley's case, 6 Mod. 213, 239.

(m) Salk. 384.

(*) Sid. 410; 2 Keb. 634. Qu. and see Bac. Ab. Baron and Feme (G) notes.

(6) 1 Hale 21; Co. Lit. 357; 1 Hawk. c. 64, s. 35. That is in respect of such actual violence as shall be done by her in person, but not in respect of what shall be done by others at her command, because such command is void.

(P)1 Hawk. P. C. c. 1, s. 13, n. 11, where 1 Bac. Abr. 594, is cited; sed qu.

(9) 1 Bac. Abr. Baron and Feme (G) notes.

(r) 22 Ass. 40; Dalt. c. 157.

(8) Hammond's case, 1 Leach 447.

(t) 1 Hawk. P. C. c. 1, s. 13; 1 Bac. Abr. Baron and Feme (G), where it is said in the notes, that she cannot be indicted for barratry, and Roll. Rep. 39 is cited. But qu. and see 1 Hawk. P. C. c. 81, s. 6, and post 266.

(u) Rex r. Morris, East. T. 1814, MS., Bayley, J., and Russ. & Ry. 270. (r) He referred to 2 East P. C. c. 16, s. 8, p. 559; 1 Hale 46; Kel. 37.

prima facie, and primâ facie only, as is clearly laid down by Lord Hale, that it was done under his coercion :(w) but it is absolutely necessary that the husband should in such case 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 communication previously 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 was 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, and then the law out of ten

*41] derness refers it prima facie to the coercion of the husband.

But when the crime has been completed in his absence, no subsequent act of his (although it might possibly make him an accessory to the felony of the wife) can be referred to what was done in his absence." (x) And it seems that the correct rule is, that if a felony be shown to have been committed by the wife in the presence of the husband, the primâ facie presumption is that it was done by his coercion; but such presumption may be rebutted by proof that the wife was the more active party, or by showing an incapacity in the husband to coerce. Thus, if the husband were a cripple, and confined to his bed, his presence then would not be sufficient to exonerate the wife.(y) Where, therefore, in a case of arson a husband and wife were tried together, and it appeared that the husband, though present, was a cripple, and bed-ridden in the room; it was held that the circumstances under which the husband was, repelled the presumption of coercion.(z)

A feme covert is not guilty of felony in stealing her husband's goods; because a husband and wife are considered but as one person in law, and the husband, by endowing his wife at the marriage with all his worldly goods, gives her a kind of interest in them for which cause even a stranger cannot commit larceny in taking the goods of the husband by the delivery of the wife, as he may by taking away the wife by force and against her will, together with the goods of the husband. (a) The wife of a member of a friendly society is not guilty of larceny if she steal the money of the society deposited in a box in her husband's custody, which box is kept locked by the stewards, of whom he is not one; for the husband has a joint property in such money.(b)

(w) 1 Hale 516.

(x) Rex v. Martha Hughes, corum Thomson, B., Lancaster Lent Assizes, 1813, MS.; 2 Lewin 229, s. c.

(y) Per Tindal, C. J., in Reg. v. Cruse, 2 M. C. C. R. 53.

(z) Reg. v. Henry and Elizabeth Pollard, Maidstone Sp. Ass. 1838, before Vaughan, J., who so held, after consulting Tindal, C. J., cited in Reg. v. Cruse, 2 M. C. C. R. 53.

The following positions seem fairly deducible from the cases upon this subject:-1st. There is no objection on demurrer, to an indictment, which charges husband and wife jointly with the commission of an offence; for the indictment is joint and several, and both may be convicted, if it appear the wife was not acting under the coercion of the husband, or either of them. 2dly. There is no objection, either in arrest of judgment, or on error, to the joint conviction of husband and wife of the same offence; for she may have been the instigator, and both guilty. 3dly. Upon the trial of husband and wife, the prima facie presumption is, that she acted under his coercion, provided he were actually present at the time the felony was committed. If, therefore, nothing appear but that the felony was committed while they were both together, the jury ought to be directed to acquit the wife. 4thly. This presumption is prima facie only, and may be rebutted, either by showing that the wife was the instigator or more active party, or that the husband, though present, was incapable of coercing, as that he was a cripple, and bed-ridden, or that the wife was the stronger of the two. C. S. G. In Reg. v. William and Emma Jones, Gloucester Sum. Ass. 1841, Coltman, J., after attentively reading this note, said that it was quite correct: MSS. C. S. G.

(a) 1 Hale 514, where it is put thus: "If she take or steal the goods of her husband and deliver them to B., who, knowing it, carries them away, this seems no felony in B.; for they are taken quasi by the consent of her husband. Yet trespass lies against B. for such taking; for it is a trespass; but in favorem vitæ, it shall not be adjudged a felony, and so I take the law to be, notwithstanding the various opinions." And he cites Dalton, cap. 104, p. 268, 269, ex lectura Cooke (new edit. c. 157, p. 504). And see 1 Hawk. P. C. c. 33, s. 32; 3 Inst. 110; 2 East P. C. 558.

(b) Rex v. Willis, R. & M. C. C. R. 375. So of goods delivered to the husband to keep : Dalt. c. 157.