TJie Lawyer's Easy Chair. was prima facts presumed to be irresponsible for the commission of certain crimes in the presence of her husband, inasmuch as it was inferred that she acted by his command and under his coercion. It is extremely doubtful how far this presumption extended at common law. It certainly did not extend to some offenses, but what the exceptions are is left in doubt by the authorities. Wharton says (i Crim. Law, § 78), " It may be questioned, however, whether the coercion and presence of the husband, if a defense at all, are not a good defense in all cases, and whether the exception taken as to the higher grades of felony can be maintained." This is the language of the eighth edition, toned down a little from that of the seventh (§ 72), which omitted the words, " if a de fense at all," and added, "and the better opinion now is not to recognize such an exception." Bishop says (I Crim. Law, § 358), actual constraint im posed by a husband on his wife will relieve her from the legal guilt of any crime whatever committed in his presence," arguing that the distinction of hei nous crimes on account of their enormity ••• seems unsatisfactory in principle "; but subsequently (§ 359) he lays down the doctrine that '• what ever of a criminal nature the wife does in the pres ence of her husband is presumed to be compelled by him," except (§ 361) that this doctrine does not ap ply to certain crimes by reason of their peculiar nature," and which " show so much malignity as to render it improbable a wife would be constrained by her husband without the separate operation of her own will," — such as "treason, probably murder, possibly robbery," etc. Mr. W. W. Thornton, in an article on "Intent in Crime" (9 Crim. Law Mag. 156), says, "Actual constraint imposed on the wife by the husband relieves her from the legal guilt of any crime whatever committed in his presence," and fur ther, " In principle there is no exception to this rule, nor is there any decision that sanctions an excep tion," and " well considered cases refuse to entertain this view of the law," i. e., the exception in case of heinous crimes. This is dissented from by Mr. Louis Richards, in an article on " The doctrine of marital unity in the modern criminal law." (13 Crim. Law Mag. 337-) Kent excepts treason, murder and rob bery, and all mala in se except theft. (2 Com. 150.) Greenleaf excepts treason and homicide (i Ev.. § 28). Schouler excepts mala in se, observing, •• Such a distinction is vague and somewhat shadowy — the line seems to be rather drawn between such heinous crimes as murder and manslaughter and the lighter offenses." Undoubtedly the law is stated too broadly by Miller, J., in Pringle v. Kyland, 97 N. Y. 130: "The rule undoubtedly is that whatever of a criminal nature the wife does in the presence of her husband is presumed to be compelled by him ";
at least if he intends it to be understood that such coercion absolves her from responsibility; and this unguarded statement is not entitled to any greater authority, although derived from Mr. Bishop, for it ignores the wife's conceded responsibility for very heinous offenses. In Uhl v. Commonwealth, 6 Grattan, 706, a case of attempt by husband and wife to commit arson, the Court charged that if she acted in presence of her husband, coercion was presumed, but if satisfied that she was not so acting they might con vict her. They convicted her, and this was affirmed. The most ancient writers excepted only treason and murder. Hale excepts also manslaughter, and Haw kins robbery. In some of the reported English nisi priiis decisions are queries whether there is any well recognized distinction between felonies and misde meanors in the application of this presumption. The cases cited by Mr. Thornton do not seem to authorize his inference. Hildreth v. Camp, 12 Vroom, 306, was a civil action for forcible entry and detainer, and the Court merely said, " If the tort is done by the wife in the company of the husband, the law presumes coercion on his part." Com. v. Lewis, i Mete. 151, held that a wife, living apart from her husband, may be indicted alone for keeping a house of ill fame, and the Court observed : • ' The humanity of the criminal law does indeed in some instances consider the acts of the wife as venial, although she has, in fact, participated with her husband in certain acts, which on the part of the husband would consti tute an offense as against him; upon the ground that much consideration is due to the great principle of confidence which a feme covert may properly place in her husband, as well as the duty of obedience to the commands of the husband, by which some femes covert may be reasonably supposed to be influenced in such cases. Then, in cases of theft or burglary, where the wife is in company with her husband, the law presumes that she acts under coercion; and she is to be acquitted." Wagener v. Bill, 19 Barb. 321, was an action for an assault and battery committed by the wife. The Court, speaking of the doctrine of coercion, explicitly recognized the exception as " to such offenses as are mala in se, and prohibited by the laws of nature, or those which are highly heinous," citing Com. 11. Neal, ю Mass. 152, in which this precise distinction is laid down. The point was not passed upon in People v. Wright, 38 Mich. 744; s. c. 31 Am. Rep. 331. In that case the enterprising wife choked the complainant and told him to keep still, and the husband picked his pockets. It was held properly left to the jury to say whether she was not acting independently — and they said she was. In Miller v. State, 25 Wis. 384, the Court held that whether, where a wife conspires with her husband to commit a robbery, and while both are so engaged he
