applicable, as from their immaturity and inexperience they are likely to indulge in loose talk. But a child's confessions, if not elicited by threats or promises, are technically admissible against him.1

Indictment not bad on its

wife alone.

III. FEME COVERTS.

§ 75. There is no technical objection to an indictment naming the wife singly. It is not necessary that the husband should be included as a joint defendant, even though he was face when living with her at the time, or was jointly participant against with her in the offence, which is a matter of defence.3 But it is right and proper, in the latter case, that there should be a joinder, and though a nonjoinder is no defence, and is not demurrable, the court may on motion compel it. The husband may be singly indicted for his wife's acts done under his command,5 or in case of misdemeanors, in his presence with his knowledge and apparent assent," or, in cases where the business of the house is at issue, for her acts in their common home." The indictment need not negative coercion.8

And so as to indict

ments

against husband and wife jointly.

§ 76. Indictments against wife jointly with husband are good on their face, and will be sustained on demurrer, on arrest of judgment, or in error. And this rule has been specifically applied to indictments for assault and battery; for keeping a bawdy house;" for keeping a

1 R. v. Wild, 1 Mood. C. C. 452, 1834; R. v. Upchurch, Ibid. 465, 1854; Mather v. Clark, 2 Aik. 209, 1828; State v. Guild, 5 Halst. 163, 1828; State v. Bostick, 4 Harring. 563, 1846. 2 R. v. Fenner, 1 Siderfin R. 410; 2 Keble, 468; R. v. Jordan, 2 Keb. 634; R. v. Foxby, 6 Mod. 178; R. v. Serjeant, 1 Ry. & Mood. 352; Com. v. Lewis, 1 Metc. 151, 1841; State v. Collins, 1 McCord, 355, 1821.

3 Somerset's Case, 2 St. Trials, 966, 1616; R. v. Crofts, 2 Strange, 1120.

1833.

Rather v. State, 1 Porter, 132,

5 See Com. v. Barry, 115 Mass. 146, 1873; Mulvey v. State, 43 Ala. 316, 1870.

* Infra, ¿ 1509.

8 State v. Nelson, 29 Me. 329, 1848.

R. v. Hammond, 1 Leach, 499, 1847; R. v. Mathews, 1 Eng. L. & E. R. 549; 1 Den. C. C. 596, 1847; R. v. Dixon, 10 Mod. 335; R. v. Cruse, 8 C. & P. 541, 1838; State v. Nelson, 29 Me. 329, 1848; State v. Potter, 42 Vt. 495, 1869; Com. v. Trimmer, 1 Mass. 476, 1805; Com. v. Tyron, 99 Mass. 442, 1868; State v. Bentz, 11 Mo. 27, 1847; State v. Parkerson, 1 Strobh. 169, 1846.

10 R. v. Cruse, 8 C. & P. 541, 1838; State v. Parkerson, 1 Strobh. 169, 1846.

11 R. v. Williams, 10 Mod. 63; 1 Infra, 1509; Hensley v. State, Hawk. c. 1, s. 12; State v. Bentz 11 52 Ala. 16, 1874.

Mo. 27,

1847.

gaming house; for keeping a tippling house; for forcible entry and detainer;3 for stealing and receiving; for murder; and for treason.

After a conviction of husband and wife jointly, of a severable offence, the court may affirm the judgment as to the husband, and reverse as to the wife. But where the offence is joint, the wife cannot be convicted without the husband.

Wife's

10 must be

pleaded

§ 77. If a feme covert be indicted as a feme sole, her proper course is to plead the misnomer in abatement, for if she pleads over, she cannot take advantage of it. She must aver misnomer her marriage in her plea, and prove it affirmatively." The practice on such a plea is elsewhere discussed." But in abatenotwithstanding she is thus precluded from setting up misnomer as a bar, she may, so it has been held, make the defence of marital coercion, though she has pleaded not guilty in an indictment charging her as a feme sole.12

ment.

$.78. By the English common law, if a wife is party to a crime under her husband's direct command and constraint she is

Wife pre

sumed to

be acting

under her

coercion

entitled to acquittal; and though by some of the old writers an exception is made in cases of treason, murder, and robbery,13 the weight of authority is against this excep- husband's tion. It is also a doctrine of the same law that if a crime when coof minor grade be committed by a wife in company with operating or in the presence of her husband, it is a rebuttable presumption of law that she acted under his immediate coercion.15 It 1 R. v. Dixon, 10 Mod. 335. 11 Whart. Cr. Pl. & Pr. 423; Com.

in crime.

2 Com. v. Murphy, 2 Gray, 510, v. Neal, 10 Mass. 152, 1813; Com. v. 1854. Infra, 1509.

State v. Harvey, 3 N. H. 65, 1826. R. v. M'Athey, 9 Cox C.C. 251, 1863. 5 R. v. Cruse, 8 C. & P. 541, 1838; Com. v. Chapman, Phil. Pamph. 1831. Sommerville's Case, 1 Anderson

R. 104.

↑ R. v. Mathews, 1 Eng. L. & E. 549; 1 Den. C. C. 596, 1847.

9

Rather v. State, 1 Porter, 132, 1833.

9 R. v. Jones, J. Kel. 37, 1841; Whart. Cr. Pl. & Pr. ?? 96, 423 et seq. 10 R. v. Atkinson, 1 Russ. on Cr. 35; R. v. Hassall, 2 C. & P. 434, 1826; R. v. Woodward, 8 C. & P. 561, 1838; R. v. McGinnes, 11 Cox C. C. 391, 1871; R. v. Torpey, 12 Cox C. C. 45, 1872.

Eagan, 103 Mass. 71, 1869.

12 U. S. v. DeQuilfeldt, 2 Crim. Law Mag. 214; 11 Rep. 455.

13 Infra, & 94; Russ. on Cr. 19-22; R. v. Stapleton, Jebb. 93; 1 Cr. & D. 163, 1841; R. v. Knight, 1 C. & P. 116 n, 1823.

14 Greaves's Notes to 1 Russ. on Cr. 19-24.

15 Infra, & 210; 1 Hawk. c. 1; R. v. Smith, 8 Cox C. C. 27, 1859; R. v. Cohen, 11 Cox C. C. 99, 1869; Com. v. Eagan, 103 Mass. 71, 1869; State v. Williams, 65 N. C. 398, 1871; Davis v. State, 15 Ohio, 72, 1846; Miller v. State, 25 Wis. 384, 1870.

is, however, conceded, that if she commit a crime of her own voluntary act, or by the bare command of her husband in his absence,' or, as it is held by the old writers, if she be guilty of treason, murder, or robbery, or any other crime, malum in se, and prohibited by the law of nature, or which is heinous in its character, or dangerous in its consequences, even in company with or by command of her husband, then she is punishable as much as if she were sole. It may be questioned, however, whether the coercive presence of the husband, if a defence at all, is not a good defence in all cases, and whether the exception taken as to the higher grades of felonies can be maintained. The difficulty, however, is in finding, in the present state of society, when the husband is as likely to support the wife if she is engaged in doing wrong, as the wife is to support the husband, any reason on which the presumption is to rest. And the presumption of coercion is rebutted by proof of independent criminal action on the part of the wife."

Presump

§ 79. In any view, while proximity of the husband at the time of the commission of the crime is necessary to enable this tion is re- presumption to apply, such proximity by itself starts the buttable. presumption. It is sufficient if the proximity is near enough to put the wife under the husband's supervision, though

1 Com. v. Feeney, 13 Allen, 560,crimes, to be exactly on the same foot1866; Sailer v. People, 77 N. Y. 411, 1879; State v. Camp, 41 N. J. L. 306, 1879. See State v. Haines, 35 N. H. 207, 1859; State v. Potter, 42 Vt. 495, 1869.

21 Hale P. C. 45; Hawk. bk. i. c. 1; 1 Black. Com. 444; R. v. Knight, 1 C. & P. 116, 1823; Com. v. Neal, 10 Mass. 154, 1813.

3 1 Russ. on Cr., by Greaves, 18, 25, note; R. v. Manning, 2 C. & K. 887, 1849; R. v. Smith, 8 Cox C. C. 27, 1858; R. v. Wardroper, 8 Cox C. C. 284, 1860; Miller v. State, 25 Wis. 384, 1870.

By the N. Y. Penal Code of 1882, 8% 17, 24, the presumption is abolished. Sir J. F. Stephen, Dig. C. L. (note to article 30), writes: "Surely, as matters now stand, and have stood for a great length of time, married women ought, as regards the commission of

ing as other people. But owing partly to the harshness of the law in ancient times, and partly to its uncertain and fragmentary condition, it is disfigured by a rule which is tolerable only because it is practically evaded on almost every occasion where it ought to be applied."

5 R. v. Torpey, 12 Cox C. C. 45, 1872; State v. Cleaves, 59 Me. 298, 1871; State v. Harvey, 3 N. H. 65, 1826; Com. v. Eagan, 103 Mass. 71, 1869; Com. v. Pratt, 126 Mass. 462, 1879; Goldstein v. People, 82 N. Y. 231, 1880; Uhl v. Com., 6 Gratt. 706, 1849; People v. Wright, 38 Mich. 744, 1878, and other cases cited, Whart. Cr. Ev. 733.

the parties are not at the time in the same room.' The presumption is, however, primâ 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 bedridden, or that the wife was the stronger of the two, or that she was exercising a free volition, or that the hus

Cox C. C. 99, 1869; 18 L. T. 489; Com. v. Trimmer, 1 Mass. 476, 1806; Com. v. Eagan, 103 Mass. 71, 1869; Uhl's Case, 6 Gratt. 706, 1849; State v. Williams, 65 N. C. 398, 1871; People v. Wright, 38 Mich. 344, 1878; Miller v. State, 25 Wis. 384, 1870. Under Arkansas statute, see Edwards v. State, 27 Ark. 493, 1872.

Dalt. c. 157; 4 Bl. Com. 29; R. v. Cruse, 8 C. & P. 541; s. c. 2 Mood. C. C. 53, 1838; R. v. Dixon, 10 Mod. 335; R. v. Fenner, 1 Sid. R. 410; R. v. Jordan, 2 Keble, 634; R. v. Crofts, 2 Strange, 1120; R. v. Taylor, 3 Burr. 1679; R. v. Price, 8 C. & P. 19, 1837; R. v. Brady, 3 Cox C. C. 425, 1850; R. v. Hill, 1 Den. C. C. 453, 1847; R. v. Cohen, 11 Cox C. C. 99, 1869; R. v. Where a wife, by the incitement of Hughes, 2 Lewin, 229, 1826; State v. her husband, but in his absence, knowNelson, 29 Me. 329, 1849; State v. ingly uttered a forged order and certiHarvey, 3 N. H. 65, 1826; State v. ficate for the receiving of prize money, Potter, 42 Vt. 495, 1869; Com. v. Mar- it was held that they might be indicted tin, 1 Mass. 348, 1806; Com. v. Trim- together, the wife as principal on the mer, 1 Mass. 476, 1806; Com. v. Neal, 49 Geo. III. c. 123, and the husband as 10 Mass. 152, 1813; Com. v. Lewis, 1 accessory before the fact, at common Metc. 151, 1841; Com. v. Butler, 1 law. Morris's Case, 2 Leach, 1096, 1823; Allen, 4, 1860; Eagan v. Com., 103 1 Russ. 18; R. & R. C. C. 270. And Mass. 71, 1869; Uhl's Case, 6 Gratt. see R. v. Atkinson, cited 1 Russ. on Cr. 706, 1849; Davis v. State, 15 Ohio, 72, 35; R. v. Hill, 3 New Sess. Cas. 648; 1846; Jones v. State, 5 Blackf. 141, 1 Den. C. C. 453, 1846; 1 Temp. & M. 1841; State v. Williams, 65 N. C. 399, 150. See 1 Russ. on Cr. 21; R. v. 1871; State v. Collins, 1 McCord, 355, Hughes, 2 Lewin, 228, 1826; cf. 1 1821; State v. Parkerson, 1 Strobh. Russell, 21; R. v. Hill, 3 New Sess. 169, 1846; State v.Bentz,11 Mo. 27,1847. Cas. 648; 1 Den. C. C. 453, 1846. In 1 R. v. Conolly, 2 Lewin, 229, 1846; a later case, however, the common Com. v. Welch, 97 Mass. 593, 1867; sergeant, after consulting Bosanquet Com. v. Munsey, 112 Mass. 289, 1872. and Coltman, JJ., held that the wife 2 State v. Cleaves, 79 Me. 298, 1881; was entitled to an acquittal on an inQuinlan v. People, 6 Parker C. R. 9, dictment for counterfeiting, where it 1861; Cassin v. Delaney, 38 N. Y. 178, appeared that she uttered the money 1868; Sellers v. People, 77 N. Y. 411, in the presence of her husband. R. v. 1879; Tabler v. State, 34 Ohio St. 127, Price, 8 C. & P. 19, 1837. And a 1877; State v. Parkerson, 1 Strobh. woman who went from shop to shop 169, 1846; see 1 Russ. on Cr. 21; R. uttering base coin, her husband acv. Stapleton, 1 Cr. & Dix, 163, 1841; companying her each time to the Jebb, 193; R. v. Price, 8 C. & P. 19, door, but not going in, was holden by 1837; R. v. Cruse, 8 C. & P. 541, 1838; Bayley, J., to be under her husband's R. v. Torpey, 12 Cox C. C. 45, 1872; coercion. MS. Durham Spring Ass. 2 Mood. C. C. 53; R. v. Matthews, 1 1829; Matthew's Digest, 26; Conolly's Den. C. C. 596, 1847; R. v. Cohen, 11 Case, 2 Lewin, 229, 1826.

band was not so near at the time as to sustain the presumption.' So, if a woman receive stolen goods into her ho. se, knowing them. to be such, or lock them up in her chest or chamber, her husband not knowing thereof; if her husband, so soon as he knows the fact, forsake his house and her company, and make his abode elsewhere, he is not to be charged for her offence; though the law otherwise will impute the fault to him, and not to her. And ordinarily the

Sir. J. F. Stephen (Dig. Crim. Law, art. 30) summarizes the law as follows:

"If a married woman commits a theft, or receives stolen goods, knowing them to be stolen, in the presence of her husband, she is presumed to have acted under his coercion, and such coercion excuses her act; but this presumption may be rebutted if the circumstances of the case show that, in point of fact, she was not coerced.

"It is uncertain how far this principle applies to felonies in general.

"It does not apply to high treason or murder.

"It probably does not apply to robbery.

5th ed. See, too, R. v. Torpey, 12 Cox C. C. 45, 1872. As to uttering, see R. v. Price, 8 C. & P. 19, 1837. As to false swearing, R. v. Dicks, 1 Russ. Cr. 34, 4th ed."

In People v. Sellers, 77 N. Y. 411, 1879, it is held that if a wife steals of her own will, or by the bare command or procurement of her husband, she is not excused, citing R. v. Buncombe, 1 Cox C. C. 183, 1845; R. v. Hughes, 1 Russ. on Cr. *22 (41). And that, as in the case before the Court, the alleged husband was two hundred feet or more away from the prisoner at the time of the larceny, it was not error for the trial court to call the attention of the jury to the fact, and to charge that it was for them to say whether it did not rebut the presumption of coercion, and whether she was in his presence.

Where a husband and wife were convicted jointly of receiving stolen "It applies to uttering counterfeit goods, it was holden that the conviccoin. tion of the wife could not be supported, "It seems to apply to misdemeanors though she had been more active than generally." her husband, because it had not been left to the jury to say whether she received the goods in the absence of her husband. R. v. Archer, 1 Mood. 143, 1854. A married woman who swore falsely that she was next of kin to a person dying intestate, and so procured administration to the effects, was held responsible for the offence, though her husband was with her when she took the oath. R. v. Dicks, 1 Russ. Cr. 34 (4th ed.). So, where a husband delivered a threatening letter ignorantly, as the agent of the wife, she alone was

In a note it is said: "As to high treason, murder, and robbery, see 1 Hale P. C. 45; Dalton. c. 157; 1 Hawk. P. C. 4; R. v. Buncombe, 1 Cox C. C. 183, 1845; but as to robbery, see Mr. Carrington's argument in R. v. Cruse, 8 C. & P. 556, 1838. In R. v. Torpey, the present recorder of London, held that the doctrine applied to robbery. 12 Cox C. C. 45, 1872. As to misdemeanors in general, see note to R. v. Price, 8 C. & P. 20, 1837; and 1 Russ. Cr. p. 145, note (b)