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wife was not drawn to the offence by her husband, but that she was the principal inciter of it, she is guilty as well as the husband. And if she be any way guilty of procuring her husband to commit the offence, it seems to make her an accessory before the fact in the same manner as if she had been sole. (m) And if she commit a theft of her own voluntary act, or by the bare command of her husband, or be guilty of treason, murder, or robbery, in company with, or by coercion of her husband, she is punishable as much as if she were sole. (n) And she will be guilty in the same manner of all those crimes which, like murder, are mala in se, and prohibited by the law of nature. (o) And in one case it appears to have been held by all the judges, upon an indictment against a married woman, for falsely swearing herself to be next of kin and procuring administration, that she was guilty of the offence, though her husband was with her when she took the oath. (p) But upon an indictment for disposing of forged notes, it was ruled that a woman was protected by being the wife of a man indicted, who disposed of them in her presence, and with whom she was in
dicted. (a) Not answer- But where the wife is to be considered merely as the servant of able for her
the husband, she will not be answerable for the consequences of husband's breach of duty. his breach of duty, however fatal, though she may be privy to his
conduct. Charles Squire and his wife were indicted for the murder of a boy, who was bound as a parish apprentice to the prisoner Charles; and it appeared in evidence that both the 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 the 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. 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 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 conscientiæ the wife was equally 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. (9)
In inferior misdemeanors a wife may be indicted, together with her husband; 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 in
(m) i Hale 516. 2 Hawk. P. C. c. (p) Rex v. Dicks, in 1781, 2 MS. 29. s. 34.
Sum. tit. Of Offenders, and MS. Bay(n) i Hawk. P.C. c. 1. s. 11. 1 Hale ley J. 45, 47, 48, 516. Kel. 31. 2 Bla. Com. (a) Rex v. Atkinson, post 20. 29. The reason given is the heinous- (9) Rex v. Squire and his wife, Stafness of those crimes.
ford Lent Assizes, 1799. MS. (0) 4 Blac. Com. 29.
trigues of the sex. (r) 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. (8)
In all cases where the wife offends alone without the company But in some or coercion of her husband, she is responsible for her offence as cases a feme
covert is re. much as any feme sole. (1) Thus she may be indicted alone for
sponsible for riot; (u) may be convicted of selling gin against the injunctions her offence. of the 9 Geo. 2. c. 23. (w) or for recusancy. (2) And she may be indicted for being a common scold; (y) for assault and battery;(z) for forestalling ; (a) for a forcible entry;(b) or for keeping a bawdy house, if her husband do not live with her; (c) and for trespass or slander. (d) 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, sbe alone shall be guilty as accessory; (e) 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. (f) 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 it
be committed by her alone, without the concurrence of the 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. (g)
It is no excuse for the wife that she committed the offence by Coercion of her husband's order and procurement, if she committed it in bis the husband absence; at least it is not to be presumed in such case that she sumed when he acted by coercion. Sarah Morris was tried for uttering a forged is not present order knowing it to be forged, and her husband for procuring her at the con:
mission of the to commit the offence; and it appeared that her husband ordered
crime, though (T) i Hawk. P.C. c. 1. s. 12. Wil- (a) Sid. 410. 2 Keb. 634. Qu, and liams's case, 10 Mod. 63. Salk. 384. see Bac. Ab. Baron and feme (G.) S.C. So also for keeping a gaming notes. house. Rex v. Dixon and wife, 10 (b) i Hale 21. Co. Lit. 357. 1 Mod. 335. where by the iudictment Bawk. c. 64. s. 35. That is in respect the husband and wife, et uterque eorum of such actual violence as shall be were charged with the offence. done by her in person, but not in (6) I Hawk. P. C. c. 72. s. 8.
respect of what shall be done by (1) 4 Blac. Com. 29. Bụt if a wife others at her command, because such incur a forfeiture by a penal statute, command is void. the husband may be made a party to (c) i Hawk. P. C. c. 1, s. 13. n. 11. an action or information for the same, where I Bac. Abr. 294. is cited: sed and shall be liable to answer what qu. shall be recovered thereon. i Hawk. (d) 1 Bac. Abr. Baron and feme, P. C. c. 1. S. 13.
(G.) notes. (u) Dalt. 447.
(e) 22 Ass. 40. Dalt. 157. (w) Croft's case, Str. 1120. And (f) Hammond's case, i Leach 447. she may be committed for disobeying (g) 1 Hawk. P.C. c. 1. s. 13. 1 Bac. an order of bastardy. Rex v. Ellen Abr. Buron and feme (G.) where it is Taylor, 3 Burr. 1679.
said in the notes, that she cannot be (1) Hob. 96. Foster's case, 11 Co. indicted for barratry, and Roll. Rep. 62. 1 Sid. 410. Sav. 25.
39. is cited. But qu. and see i Hawk. (y) Foxley's case, 6 Mod. 213. 239. P. C. c. 81. s. 6. and post, Book II. (2) Salk. 384,
Chap. xxij. YOL, I.
it were com- her to do it, but that she uttered the instrument in his absence.
coercion at the time of the uttering did not arise, as the husband was may be acces- absent at that time; and that the wife was properly convicted of sory before the the uttering, and the husband of the procuring. (h) And in a case felony of the
which occurred a short time before that which has been just
a felony be committed in the presence of the husband, raises a
presumption prima facie, and prima facie only, as is clearly laid “ down by Lord Hale, that it was done under his coercion : (y) “ 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 con“ sequence 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 6 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 tenderness refers it prima “ facie to the coercion of the husband. But when the crinie 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.” (%)
(h) Rex v. Morris, East. T. 1814. MS. Bayley J. and Russ. and Ry.
270. («) He referred to 2 East. P. C. c. 16. s. 8. p. 559. 1 Hale 46. Kel. 37.
(y) i Hale 516. (2) Rex v. Martha Hughes, coram Thomson B, Lancaster Lent Assizes 1813. MS.
A feme covert is not guilty of felony in stealing her husband's The wife is not goods, because a husband and wife are considered but as one guilty of feperson in law, and the husband, by endowing his wife at the ing her husmarriage with all his worldly goods, gives her a kind of interest in band's goods. 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. (h)
And in a case where the prisoner was an apprentice to the pro- And a stranger secutor, and it appeared that the prosecutor's wife had continual cannot commit
larceny of the custody of the key of the closet where her husband's plate was husband's usually locked up, and that she had pawned some articles of it in goods by the order to supply the prisoner with pocket money, but the articles delivery of the she pawned were not those which the prisoner was charged with is her adulstealing; and the prisoner confessed that he took the articles terer. mentioned in the indictment from the closet, and a pawnbroker proved that he received them in pledge from the prisoner, but it did not appear by what means the prisoner had gained access to the closet from which they were taken, the prisoner was acquitted. The Court held, that the prosecutor's wife, having the constant keeping of the key of the closet where the plate was usually locked up, and it appearing that the prisoner could not have taken it without her privity or consent, it might be presumed that he had received it from her. (*). But it should be observed, that if the wife steal the goods of her husband and deliver them to B. who knowing it carries them away, B. being the adulterer of the wife, this, according to a very good opinion, would be felony in B.; for in such case no consent of the husband can be presumed. (k)
A femé covert shall not be deemed acessory to a felony for Feme covert receiving her husband who has been guilty of it, as her husband not accessory shall be for receiving her; nor shall be a principal in receiving her for receiving husband when his offence is treason; for she is sub potestate viri, and bound to receive him. (1) Neither is she affected by receiving, jointly with her husband, any other offender. (m)
It is no ground for dismissing an indictment for burglary or Indictment larceny as to the wife, that she is charged with her husband and against hus
band and wife. described as his wife; for the indictment is joint and several according as the facts may appear; and on such an indictment the wife may be convicted, and the husband acquitted. (x)
(k) I Hale 514. where it is put thus: And see | Hawk. P. C. c. 33. s. 32. “ If she take or steal the goods of her 3 Inst. 110. 2 East P. C. 558. “ husbaud and deliver them to B., (i) Harrison's case, 1 Leach 47, “ who, knowing it, carries them away, 2 East P.C. 559. " this seems no felony in B.; for they (k) Dalton, cap. 104. pl. 268, 269, " are taken quasi by the consent of her (new edit. c. 157. p. 504.) " husband. Yet trespass lies against (1) i Hale 47. í Hawk. P.C. c. 1. " B. for such taking ; for it is a tres"pass: but in favorem vitæ it shall (m) i Hale 48, 621. But if the wife " not be adjudged a felony, and so I alone, the husband being ignorant, " take the law to be, notwithstanding do knowingly receive B. å felon, the " the various opinions.” And he cites wife is accessory and not the husDalton, cap. 104. p. 268, 269. ex lec- band. 1 Hale 621. tura Cooke (new ed. c. 157. p. 504.) (x) i Hale 46.
And in burglary or larceny if a man and woman are indicted, and the woman pretends to be the man's wife, but is not so described in the indictment, the onus of proving that she is his wife is upon her. Thus where Thomas Wharton and Jane Jones were indicted for burglary, and the woman pleaded that she was married to Wharton, and would not plead to the name of Jones, the grand jury who found the bill were sent for; and in their presence, and with their consent, the court inserted the name Jane Wharton, otherwise Jones, not calling her the wife of Thomas Wharton, but giving her the addition of spinster ; upon which she pleaded; and the court told her that if she could prove that she was married to Wharton before the burglary, she should have the advantage of it: but on the trial she could not, and was found guilty, and judgment given upon her.(y) But cohabitation and reputation will be sufficient evidence upon such point.. William Atkinson and Mary Atkinson were indicted for disposing of forged country bank notes; and it appeared that the man disposed of them in the presence of the woman at a public house, to which they went together to meet the person to whom they were disposed of; that the man went thither by appointment, and the woman had a bundle of the same notes in her pocket. There was evidence, on the part of the prosecution, that they had lived and passed as man and wife for some months; upon which it was put to Gibbs C. B., whether the woman was not entitled to an acquittal, and he thought she was; and the counsel for the prosecution at once acquiesced. (2)
IV. Upon the plea or excuse of ignorance, it may be shortly observed, that it will apply only to ignorance or mistake of fact, and not to any error in point of law. For ignorance of the municipal law of the kingdom is not allowed to excuse any one that is of the age of discretion, and compos mentis, from its penalties when broken; on the ground 1hat every such person is bound to know the law, and presumed to have that knowledge. (n) But in some instances an ignorance or mistake of the fact will excuse; which appears to have been ruled in cases of misfortune and casualty; as if a man, intending to kill a thief or housebreaker in his own house, by mistake kills one of his own family, this will not be a criminal action. (0)
(y) Rex v. Jones, Kel. 37.
(z) Rex v. Atkinson, O. B. Jan. Şess. 1814. MS. Bayley, J.
(n) i Hale 42. 4 Blac. Com. 27. Ignorantia juris, quod quisque tene
tur scire, neminem excusat, is a maxim as well of our own law as it was of the Roman. Plowd. 343. Ff. 22. 6. 9.
(0) Levett's case, Cro. Car. 538.' 4 Blac. Com. 27. 1 Hale 42, 43.