and not having inflicted any violence on the said John Leach, can be properly convicted of the offense before mentioned.1 W. T. CHANNELL. POLLOCK, C. B. The jury have disposed of this case by their finding. They have found that Sarah Smith was a married woman; that she acted under the coercion of her husband, and that she herself did not personally do any act of violence to the prosecutor. The conviction, therefore, must be reversed. Conviction reversed. WIFE-PRESUMED COERCION OF HUSBAND MUST BE CHARGED TO THE JURY. In the Supreme Judicial Court of Massachusetts, October Term, 1869 Presumed Coercion of Husband - Jury Must be Instructed.-A wife was indicted for an assault committed in the presence of her husband. Her counsel asked the judge to instruct the jury that she was presumed to act under her husband's control. The judge refused, but instructed them that if they were satisfied that she did the acts proved of her own free will, free from the coercion or influence of her husband, they would be warranted in convicting her. Held, error. 66 Complaint to the justice of the Municipal Court at Taunton in the County of Bristol; —, of Taunton in the County of Bristol, in behalf of the commonwealth of Massachusetts, complaine" that Michael Eagan, Mary Eagan and John Eagan made an assault and battery on Patrick Saxton. The complaint was signed "Willis Potter," and the clerk indorsed thereon that it was received and sworn to on August 3, 1869. Michael Eagan was acquitted; Mary Eagan, who was wife, and John Eagan, who was their son, were convicted; and Mary Eagan appealed. At the trial in the superior court before PITMAN, J., "the evidence showed that while the defendant's husband and son were using angry words towards Saxton, the defendant, in the immediate presence of her husband, threw a pail of dirty water on Saxton. This was all the material evidence in the case. Upon these facts the defendant asked the judge to instruct the jury that the presumption was that she acted under 1 See Cruise's Case, 8 C. & P. 545; 1 Taylor on Evidence, 162, and the cases there cited. the coercion and control of her husband, and should be acquitted; but the judge declined and instructed the jury that if they were satisfied that she did the acts proved of her own free will, free from the coercion or influence of her husband, they would be warranted in convicting her." The defendant was found guilty and moved in arrest of judgment, "because it does not appear in the body of the complaint who was the complainant, and that such defect is apparent, and is in matter of substance and not of form." The motion was overruled, and the defendant alleged exceptions. J. Brown, for the defendant. G. Marston, for the commonwealth, to the point that the instructions were right, cited The King v. Stapleton,1 Commonwealth v. Lewis,2 Wagener v. Bill.3 MORTON, J. The assault of which the defendant was convicted was committed in the immediate presence of her husband. The presumption of law is that she acted under his coercion. It was the right of the defendant to have this principle stated to the jury. The counsel asked the court to instruct the jury "that the presumption was that she acted under the coercion and control of her husband and should be acquitted.” If there was evidence in the case to rebut the presumption in favor of the defendant, the court was justified in refusing to instruct the jury that she should be acquitted; but we think that the first part of the instruction requested should have been given. The instructions actually given would have been accurate if the court had also instructed the jury as to the presumption above stated, but by the refusal to do so the defendant was deprived of the benefit of this presumption as one of the elements proper for the consideration of the jury in determining her criminal liability. The motion in arrest of judgment, being for a cause existing before verdict, and not affecting the jurisdiction of the court, must be overruled. 5 Exceptions sustained. NOTES. § 11. Husband not Liable for Wife's Crimes. - A husband is not responsible for an indictable offense committed by his wife, without his presence or coercion." 1 Jebb. 93. 21 Met. 151. 19 Barb. 321; 3 Greenl. Ev., sec. 7. 4 Commonwealth v. Gannon, 97 Mass. 547; Commonwealth v. Burk, 11 Gray, 437. 5 Stat. 1864, ch. 250, secs. 2, 3. Pennybaker v. State, 2 Blackf. 484 (1831). $12. - Instances.—Thus where a wife who assisted in her husband's business pledged paper not stamped as required by law; the husband was held not responsible,1 and so where a wife received stolen goods without his knowledge or control he was adjudged not guilty,2 and a husband is not liable for an alleged sale of liquor made by his wife in his absence and against his orders." § 13. Wife not Punishable for Harboring or Screening Husband. — A wife can not be found guilty of harboring and assisting her husband who has committed a murder, nor of receiving stolen property of which the husband is the thief, and destroying it for the purpose of screening him.5 In R. v. Manning, the court said to the jury: "The mere act of harboring and comforting her husband after the crime was committed (if you consider she had no other share in the transaction) would not render her liable to this charge of murder either as principal or accessory." " § 14. Husband's Right of Custody of Wife. A husband has a right to the custody of his wife and to use compulsion if necessary to retain possession of her from one in whose society he finds her and with whom he has reason to believe she is about to commit or has committed adultery." § 15. Assault by Husband on Wife - Power of Correction. The law in some jurisdictions will not punish the husband for a moderate corporal correction of the wife. And a husband may show, in excuse for an assault on his wife, that at the time of the assault he was provoked to it by her misconduct and bad behavior. And so he may use force with her to prevent her interference with his parental authority.10 In People v. Winters," the prisoner was indicted for an assault on his wife. It appeared on the trial that he attempted to correct one of her children, when the wife interfered and he struck her. The judge ruled that a husband had no right to beat or punish his wife, but he might restrain her from acts of violence towards himself and others, for he is accountable for her acts. The prisoner was acquitted. In Bradley v. State, 12 the court say: "If the defendant now before us could how from the record in this case that he confined himself within reasonable bounds when he thought proper to chastise his wife, we would deliberate long before an affirmance of the judgment (of conviction of assault). Το screen from public reproach let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehavior, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned. In State v. Black, 13 the defendant was indicted for an assault on Tamsley Black, his wife. The evidence showed that the defendant and his wife lived separate from each other. The defendant was passing by the house of one Koonce, 1 Atty. Gen. v. Riddle, 2 Cr. & J. 494 (1852) 2 R. v. Dring, 7 Cox, 383 (1857). 3 State v. Baker, 71 Mo. 475 (1880). 4 R. v. Good, 1 C. & K. 185 (1842). 5 R. v. McClarens, 3 Cox, 425 (1849). 8 State v. Rhodes, Phill. (N. C.) 453 (1868). 9 Robbins v. State, 20 Ala. 36 (1852). 10 Gorman v. State, 42 Tex. 221 (1875). 11 2 Park. C. C. 10 (1823). 12 Walk (Miss.) 156 (1824). 13 Winst, 266 (1864). where his wife then resided, when she called him in an angry manner and asked him if he had patched Sal Daly's bonnet (Sal Daly being a woman of ill fame). She then went into the house and defendant followed her, and asked her what she wanted, when she repeated her question about the bonnet. Angry words then passed between them. He accused her of connection with a negro man, and she called him a hog-thief, whereupon the defendant seized her by her hair and pulled her down upon the floor and held her there for some time. He gave her no blows, but she stated upon the trial that her head was considerably hurt, and that her throat was injured and continued sore for several months, but that he did not choke her, nor attempt to do so. At the trial she was entirely recovered. After she got up from the floor she continued her abuse of him. A verdict of guilty was entered, subject to the opinion of the court. The judge being of opinion with the State, gave judgment accordingly. PEARSON, C. J. "A husband is responsible for the acts of his wife, and he is required to govern his household, and for that purpose the law permits him to use towards his wife such a degree of force as is necessary to control an unruly temper and make her behave herself; and unless some permanent injury be inflicted, or there be an excess of violence, or such a degree of cruelty as shows that it is inflicted to gratify his own bad passions, the law will not invade the domestic forum or go behind the curtain. It prefers to leave the parties to themselves, as the best mode of inducing them to make the matter up, and live together as man and wife should. Certainly the exposure of a scene like that set out in this case can do no good. In respect to the parties, a public exhibition in the court-house of such quarrels and fights between man and wife widens the breach, makes a reconciliation almost impossible, and encourages insubordination; and in respect to the public it has a pernicious tendency. So, pro bono publico, such matters are excluded from the courts, unless there is a permanent injury or excessive violence or cruelty indicating malignity and vindictiveness. In this case the wife commenced the quarrel. The husband, in a passion provoked by excessive abuse, pulled her upon the floor by the hair, but restrained himself, did not strike a blow, and she admits he did not choke her, and she continued to abuse him after she got up. Upon this state of facts the jury ought to have been charged in favor of the defendant.1 It was insisted by Mr. Winston that, admitting such to be the law when the hushusband and wife lived together, it did not apply when, as in this case, they were living apart. That may be so when there is a divorce from bed and board,' because the law then recognizes and allows the separation, but it can take no notice of a private agreement to live separate. The husband is still responsible for her acts, and the marriage relation and its incidents remain unaffected. This decision must be certified to the Superior Court of law for Ashe County, that it may proceed according to law." 16. Rape. – And a husband can not be guilty of a rape on his wife.2 § 17. Husband may Watch Wife Eavesdropping. So though eavesdropping is an indictable nuisance, yet a husband who watches his wife is not guilty. And so of a person who does so by direction or authority of the husband. "There is no law that can prevent a husband from constituting a watch 1 State v. Pendergrass, 2 Dev. & Batt. 365; Joyner v. Joyner, 6 Jones Eq. 325. 2 Lord Audley's Case, 3 How. St. Tr. 402. on his wife and if he has given this man authority to watch his wife I do not know how he can be prosecuted.” 1 18. Husband and Wife can not commit a conspiracy.2 Conspiracy.-And a husband and wife alone § 19. Goods in Man's House Presumed His Stolen goods in a married man's house are presumed to be in his possession, and the wife can not be adjudged guilty of their larceny.3 § 20. Wife can not Commit Arson as to Husband's Goods. — So it is not arson for a wife to set fire to her husband's house with intent to injure him.* In R. v. March,5 the prisoner was tried before Alexander, C. B., at the spring Assizes for the county of Northampton, in the year 1828, on an indictment which described her as Elizabeth, the wife of John March, and charged her with unlawfully, maliciously, and feloniously setting fire to a certain house of the said John March, with intent to injure him, against the form of the statute. It appeared from the evidence that March, the prosecutor and the prisoner, his wife, had lived separate for about two years, she going by her maiden name. It was proved that previous to the act, when she applied for the candle with which it was done, she said it was to set her husband's house on fire, because she wanted to burn him to death. Upon another and earlier occasion she used threats of burning him and his house to a cinder. Having borrowed a candle and lantern she went to her husband's thatched house at night, and stuck the candle burning into the thatch. She was observed by a neighbor, and an alarm was given, upon which she ran away; the husband came out and pulled from the roof the burning candle and the straw immediately communicating with it, and so prevented any conflagration. The straw pulled out was proved to have been black and singed. The jury found her guilty. The learned Chief Baron wished to have the opinion of the judges, whether it is an offense within the 7 & 8 George IV.,6 for a wife to set fire to her husband's house for the purpose of doing him a personal injury. If not, the conviction appeared to the learned Chief Baron to be erroneous. In Rex v. Ann. Gould, it was held that a woman could not be capitally convicted for stealing the goods of a stranger to the value of 40s. in the dwelling-house of her husband. This case was considered at a meeting of the judges in Easter Term, 1828 (present LORD TENTERDEN, C. J. BEST, ALEXANDER, C. B., BAYLEY, LITTLEDALE, GASALEE, JJ., AND VAUGHN B.), and the conviction was held wrong; the learned judges thinking that to constitute the offense, it was essential that there should be an intent to injure or defraud some third person, not one identified with herself. $21 False Pretenses. A married woman can not be convicted of false pretenses when she informed the prosecutor at the time of the alleged false representations that she was a married woman.8 1 Com. v. Mengelt, cited in Com. v. Lovett, 4 Clark (Pa.), 5 (1831). 2 Com. v. Woods, 7 Bost. Law. Rep. 58. 8 R. v. Banks, 1 Cox, 238 (1845). 4 R. v. March, 1 Moody, 182 (1828). Id. 6 ch. 30, sec. 2. 71 Leach, 257. 8 Com. v. Herman, 38 Leg. In t. 260 (Pa.) |