casioning him actualy bodily harm, and he proposed to proceed with

that case.

Williams argued that if evidence were given on the indictment the same point would arise.

Metcalfe contended that Hawkins and other text-writers drew a distinction on this point between cases of felony and cases of misdemeanor only. Indeed, this distinction was drawn in the case of Reg. v. Cruse, already cited.

Williams contended that no such distinction existed. He referred to Reg. v. Price1 where the acquittal of a woman was directed who had been jointly indicted with her husband for a misdemeanor in unlawfully uttering counterfeit coin.

The RECORDER (after consulting Mr. Baron BRAMWELL), stated that he should have to leave this case to the jury in the same way as the last, whereupon Metcalfe said he should not offer any evidence.

Not guilty.

MARITAL COERCION IN THE FEDERAL COURTS - EVIDENCE OF MARRIAGE.

UNITED STATES v. DE QUILFeldt.

[2 Crim. L. Mag. 211.]

In the United States Circuit Court, Western District of Tennessee, January, 1881.

1. Indictment against Married Woman - Pleading.—If a married woman is described, in an information filed against her alone, as a single woman, or is not described at all as married or single, she may either move to quash the information or plead in abatement for want of a proper addition; but if she fail to do this, and plead not guilty, that is prima facie evidence that she is not a feme covert. It is not conclusive, however, and she may, under the general issue, prove the marriage, as well as the other facts essential to show marital coercion.

2, The Declarations of a Man and Woman recognizing each other as man and wife, made at the time of their arrest in company with each other, while engaged in the act of making counterfeit coins, the fact that they had been cohabiting together, and were reputed to be married, are competent proof of the marriage.

3. A New Trial will be granted in Criminal Cases for the improper rejection of com. petent and material testimony, although in the opinion of the court the evidence rejected was wholly insufficient to establish the issue, because the defendant has a right to the verdict of a jury on all the facts constituting her defence, and the court will not, on a motion for a new trial, undertake to pass on the weight of the proofs. Presumption of Coercion - Rule in Federal Courts.- Quære: Whether the common law fiction that a married woman committing an offense in the presence of her husband,

18 C. & P. 19.

presumably acts by his coercion, furnishes any excuse or exemption from the penalties imposed by an act of Congress for the commission of statutory crimes, when the statute itself makes no such exception.

On motion for new trial.

W. W. Murray, District Attorney, and John B. Gough, Assistant District Attorney, for the United States.

M. D. L. Stewart, J. S. Duval and B. B. Barnes, for defendant. HAMMOND, D. J. The defendant, being arraigred upon an information charging her with counterfeiting coins, pleaded not guilty, and was put upon her trial. She is described in the information simply as "Annie De Quilfeldt, otherwise known as Annie Egbert;" all addition, such as "wife of A. B.," "widow," or "spinster," being omittted. On the trial, a witness, the detective who arrested her, was asked whether she was not living with Charles G. De Quilfeldt, who had just been convicted of counterfeiting, as his wife; whether they, at the time of arrest, called and recognized each other as such, and whether they were not reported to be man and wife among their neighbors. This testimony was, on objection of the district attorney, excluded. There was proof tending to show that, when the defendant was caught in the act of molding the coins, this man, De Quilfeldt was either present, or so nearly connected with the act, as to shield her under the doctrine of marital coercion, if she be in fact his wife. He was proved to have been engaged in counterfeiting at his house, where this defendant lived with him. The testimony was excluded, as will appear hereafter, on the ground that by pleading over the defendant had waived the defense of coverture. But the court sought to protect her against the effect of the ruling by offering to allow her to withdraw a juror, enter a mistrial, and then to withdraw the plea of not guilty and plead the want of a proper addition, describing her as married or single, in abatement. Upon being informed that a plea in abatement must be verified by affidavit, her counsel, upon consultation with her, declined to take this course, and she was convicted. She now moves for a new trial for error committed by the court in excluding testimony tending to show that she was married to De Quilfeldt, and raising the presumption in her favor of coercion by her husband.

Before entering upon the consideration of the question whether the testimony was properly rejected, it may be proper to say that this defence of marital coercion as a protection to women engaged in the commission of crime is not a favored one, and, at least in modern times, has almost lost all solid foundation for its existence. It has been abrogated by statute in some States, and might well be in all.1 It

1 1 Benn. & Heard Lead. Crim. Cas. (2d ed.) 81, and notes; Steph. Dig. Cr. L. (St.

Louis ed. 1878), art. 30, p. 20, and note 2, p. 362.

is almost an absurdity in this day to pretend that husbands can or do coerce their wives into the commission of crimes, and, where coercion appears as a fact, the court or jury would always allow it to mitigate punishment, or it might well be a recommendation to executive clemency; but to hold it to be presumed as a fact, in all cases where the husband is present, is the relic of a belief in the ignorance and pusillanimity of women which is not, and perhaps never was, well founded, and does them no credit. I have had serious doubts whether this common-law fiction has a place in the criminal jurisprudence of the United States. Our offenses are purely statutory, and we do not look to the common law, or the law of the States, to furnish us any element or characteristic of an offense.1

This statute against counterfeiting says, "every person who falsely makes, forges, or counterfeits any coin," etc., shall be punished. It makes no exception in favor of married women, and it may well be doubted if the courts can engraft an exception on the statute.2 I am inclined to believe it is the logical result of the doctrine that our crimes are statutory, and that we have no common law of crimes, except so far as the statutes have adopted it, in matters of evidence and practice, that no exemption exists unless Congress defines and declares it. The presumption of coercion may be a rule of evidence, but the exemption of the wife on account of it is a rule of law that Congress has not declared. I have not found the point discussed, nor any case recognizing this doctrine of marital coercion, in the Federal courts. There are cases recognizing insanity, and perhaps infancy as a defence, but, generally, the cases are those of common-law crimes on the high seas or elsewhere, of which these courts have jurisdiction, and which are defined not by statute, but by the adoption by Congress of the common law in its fullest scope. Insanity was recognized as a defence to statutory offenses in United States v. Schultz,3 and United States v. Lancaster,4 and there may be other cases. I am not willing, however, without consultation with my brother judges on this bench, to exclude this defense on that theory, and shall, therefore, for the purposes of this motion, assume that we are to be governed by the common-law principle that a wife committing an offense in the presence of her husband is prima facie presumed to act by his command, and is, therefore, not guilty unless it can be shown that she was in fact not governed by him.

The testimony was excluded on the authority of the statement that "if a feme covert be indicted as a feme sole, her proper course is to

1 United States v. Coppersmith, 1 Cr. L. Mag. 741; United States v. Walsh, 5 Dill. 58. 2 Commonwealth v. Lewis, 1 Metc. (Mass.) 151, 153.

3 6 McLean, 121.

47 Biss. 440.

plead the misnomer in abatement, for, if she pleads over, she can not take advantage of it. She must aver her marriage in her plea, and prove it affirmatively." If, as is now argued, this means to apply only to the plea of misnomer, the paragraph is misleading, for the mere erroneous statement of the defendant's name in an indictment or information must be corrected by plea in abatement, whether the defendant be man or woman, married or single, and the status of the woman, as regards her being married or single, is, it seems to me, wholly immaterial, except as a matter of evidence on the plea.2

I think the author-and I say this with the utmost diffidence, of one so eminent and learned in this department of the law - has confused somewhat two analogous but distinct things, namely, pleading a misnomer and pleading a wrong addition of estate, mystery, or place. Advantage is to be taken of either in the same way, but the failure to plead in abatement does not, perhaps, have the same effect; at least, not as to this matter of the addition describing a woman as married or single. The failure to plead a misnomer in abatement cures the defect if the defendant pleads not guilty, and for the purposes of that case the prisoner has the name given in the indictment.3

The addition of estate, or degree, or mystery required by statute,4 if omitted or wrongfully stated, should also be corrected by motion to quash, or plea in abatement.5 By statute 7 George IV.,6 and 14 and 15 Victoria, no indictment shall be now abated by reason of any plea of misnomer, or for want of or imperfection in the addition of the defendant.8 I do not find that we have any such statutes in Tennessee, but I am informed by my brother Horrigan, of the Criminal Court of this city, a very learned judge, that while it is customary to add "yeoman" as an addition, it is wholly unnecessary under our practice. Now, as to indictments against men, there can be no two opinions as to the utter uselessness of any addition such as "esquire," "gentleman," "yeoman," or the like; but when women are indicted it seems to be a matter of more importance, and quite necessary that they should be described according to the fact, as "wife of A. B.," "widow," "spinster," or "single woman," especially in view of this very doctrine of marital coercion being a defence; and the neglect to do it in this case has caused the trouble we have with this trial. If a woman be indicted

13 Whart. Cr. L. (7th ed.), sec. 70. 2 Id., secs. 536, 537.

3 Whart. Cr. L., sec. 233; 1 Bish. Cr. Pro. (2d ed.), 3ec. 791 supra; 1 Whart. Cr. L., State v. Thompson, Cheves 31; People v. Smith, 1 Park. (N. Y.) Cr. 329; State v. Hughes, 1 Swan (Tenn.) 261; Lewis v. State, 1 Head. (Tenn.) 329.

4 1 Hen. V., ch. 5.

61 Whart. Cr. L., secs. 243, 248; Whart. Prec. (ed. 1849), 7, note e; 1 Bish. Cr. Pro., secs. 671, 675, 772.

6 ch. 64.

7 ch. 100.

8 Id.; 1 Arch. Cr. Pl. (by Waterman, 6th ed.), 78, 110, 111.

as a wife, that, being an admission on the record that she is so, will be sufficient proof of it, and perhaps conclusive on the government. Otherwise, if she set up her coverture as a defence she must prove it. And proof merely of cohabitation with the man, and passing by his name, does not seem to be sufficient proof of this, although, on the other hand, actual evidence of the marriage would not, perhaps, be required.1

I have examined the cases cited in the text-books, so far as they are accessible to me and I regret that some of the most important of them are not to be found in the library, and also that I have not the newer editions of the text-books themselves and must say that I am not able to determine with satisfaction just how a woman must or may 66 set up her coverture as a defence" when she is indicted separate and apart from her husband, and as a single woman. Here the defendant

is not described as either married or single, and but for the feminine name of "Annie" attached to her surname, and the alias dictum, we would never know from the face of the information that she was a woman at all. I am of opinion that she could have moved to quash the information for want of a proper addition, or pleaded in abatement the omission, disclosing, of course, how the fact was, and upon proof of her marriage to De Quilfeldt the government would have been compelled to amend the information by describing her as his wife. This would have settled the fact of marriage, perhaps conclusively, certainly prima facie, in her favor. On the other hand, if she were described as a single woman, or not described as married, which, I take it, is the same thing, and she ignores the defect and pleads not guilty, the prima facie presumption is that she is single; but if the fact be otherwise, she may prove it on the trial and under her plea of not guilty. The mistake made at the trial of this case was in holding that this prima facie presumption was conclusive against her because of her failure to plead in abatement.

The case of Rex v. Jones,2 I have not been able to see, but it is abstracted in 1 Russ. Cr.,3 and it there appears that it was a joint indictment against Thomas Wharton and Jane Jones. The woman pleaded (how it does not appear) that she was married to Wharton, and would not plead the name of Jones. The grand jury were called in, and the court, in their presence, amended the indictment by inserting the name of Jane Wharton, otherwise called Jones, not calling her the wife of Thomas Wharton, but giving her the addition of "spinster," upon which she pleaded. The court told her, however, that if she could prove that she was married to Wharton before the burglary she

1 1 Arch. Cl. Pl., supra, 8; Whart. Prec., supra, 7.

2 Kelynge, 37.

3 8th ed., p. 24.