that 'nearness of bodily presence was no excuse if the husband was actually not present,' and that 'if he was out of the house or out of her presence' it was to be presumed that she acted of her own will. The question is whether the charge was right. We think it was. We think that mere proximate, without actual presence, will not start the presumption of coercion. In such a case the question is, in our opinion, one of fact, though doubtless the fact of coercion might easily be inferred from proximity, and perhaps ought to be inferred if there be circumstances showing concert of action.

In

the case at bar the court told the jury that it was competent for defendant to rebut the presumption that she was acting of her own will, when the husband was absent, by showing that she was in fact acting under his control. And she might show it, of course, as well by the government witnesses, if she could, as by her own. We think the instruction went as far as the defendant was entitled to have it go for her protection, and that the cases in which courts have gone farther are cases in which they have not kept clearly in mind the distinction between an inference of fact to be drawn by the jury, and a presumption of law to be directed by the court." State v. Shee (1882) 13 R. I. 535.

The act of a wife in obtaining a revolver and conveying it to her husband in prison, at his request, is an act committed in his presence, and the presumption applies; the fact that the husband was in prison does not rebut the presumption of coercion. State v. Miller (1901) 162 Mo. 253, 85 Am. St. Rep. 498, 62 S. W. 692. In Ryan's Case, referred to in a note to Rex v. Knight (1823) 1 Car. & P. (Eng.) 116, a wife indicted for conveying implements of escape to her husband, who was in prison convicted of felony, was pardoned because the judges considered that she acted under coercion, though her husband, from being in prison, could not be present.

According to Seiler v. People (1879) 77 N. Y. 411, it is the presence of the husband at the commis

sion of the criminal acts that raises the presumption.

There is no legal presumption in the prosecution of a married woman that the criminal acts were done in the husband's presence. Com. v. Butler (1861) 1 Allen (Mass.) 4.

It has been held that the presumption is that counterfeiting instruments found in a house occupied by husband and wife were in the husband's possession, but that this may be rebutted and the wife convicted. Reg. v. Boulier (1850) 4 Cox, C. С. (Eng.) 272.

4. Mere fact of marriage.

The mere fact that the accused was married raises no presumption of compulsion by the husband. Brown v. Atty. Gen. [1898] A. C. (Eng.) 234, 77 L. T. N. S. 414; Reg. v. Baines (1900) 69 L. J. Q. B. N. S. (Eng.) 681, 64 J. P. 408, 82 L. T. N. S. 724, 16 Times L. R. 413.

It is not necessary, in the prosecution of a married woman, to allege that she did not act under the control or coercion of her husband; if such were the case, it is a matter of defense. State v. Nelson (1848) 29 Me. 329.

5. Crimes to which presumption applies.

The criminal acts to which the common-law presumption of coercion applies have not been uniformly stated. The crimes of murder and treason have generally been stated to be exceрtions thereto. Rather v. State (1834) 1 Port. (Ala.) 132; State v. Ma Foo (1891) 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222; MORTON V. STATE (reported herewith) ante, 264. It does not apply in prosecutions for murder. Anon. (1664) J. Kelyng, 31, 84 Eng. Reprint, 1068, 2 East, P. C. 559. It has been stated to be limited to crimes less than murder in Davis v. State (1846) 15 Ohio, 72, 45 Am. Dec. 559. Again the rule has been limited to offenses "of minor grade." State v. Shee (1882) 13 R. I. 535. In Hawkins's Pleas of the Crown it is stated that "a feme covert is so much favored, in respect of that power and authority which her husband has over her, that she shall not suffer any punishment for committing a bare theft in company with or by coercion of her husband." 1 Hawk. P. C. chap. 1, § 9. "But 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." 1 Hawk. P. C. chap. 1, § 11. In Bibb v. State (1892) 94 Ala. 31, 33 Am. St. Rep. 88, 10 So. 506, the court refused to allow the presumption in a prosecution for murder. In a charge to the grand jury, the Honorable C. E. Law quoted with approval the statement of starkey, to the effect that the doctrine does not extend to cases of murder or manslaughter, nor to that of treason, neither does it extend to assault and battery, nor to any other forcible and violent misdemeanor committed jointly by the husband and wife. (1849) 2 Carr. & Κ. (Eng.) 903, note, 2 East, P. C. 559.

But in State v. Kelly (1888) 74 Iowa, 589, 38 N. W. 503, the presumption was applied in a prosecution for murder. And in Reg. v. Alison (1838) 8 Car. & P. (Eng.) 418, Patteson, J., refers to a case in which a wife who, with her husband, agreed to commit suicide, but who survived, was acquitted of murder solely on the ground that, being the wife of the deceased, she was under his control. The proposal to commit suicide had been first suggested by him, and the court states that it was considered she was not a free agent; therefore, the jury, under the direction of the judge who tried the case, pronounced her not guilty. It is stated to include all crimes in Com. v. Conrad (1871) 28 Phila. Leg. Int. (Pa.) 310, a prosecution for murder.

In Wagener v. Bill (1865) 19 Barb. (N. Y.) 321, a civil action for assault and battery, the court states that the rule does not extend to such offenses as are "mala in se and prohibited by the laws of nature, or to those which are highly heinous."

In Reg. v. Torpey (1871) 12 Cox, C. C. (Eng.) 45, the rule as to the

presumption of coercion was applied in a prosecution for robbery.

That the presumption applies in cases of misdemeanor is stated in United States v. Terry (1890) 42 Fed. 317.

In Reg. v. Buncombe (1845) 1 Cox, C. C. (Eng.) 183, the court refused to discharge a married woman on trial for robbery committed in the presence of her husband, and allowed the trial to proceed, reserving the point as to the liability for consideration of the judges if the prisoner should be convicted. The prisoner was found not guilty, hence, it was not necessary to decide the question.

The rule that a wife is presumed to have acted under coercion by her husband is held to have no application to a prosecution for keeping a bawdyhouse. Hence, a married woman may be convicted without rebutting evidence. State v. Gill (1911) 150 Iowa, 210, 129 Ν. W. 821; Com. v. Lewis (1840) 1 Met. (Mass.) 151; State v. Jones (1903) 53 W. Va. 613, 45 S. Ε. 916. In Com. v. Cheney (1873) 114 Mass. 281, it is held that, at common law and under the Massachusetts General Statutes, chap. 87, § 7, a married woman may be indicted and, upon appropriate evidence, convicted, either separately or jointly with her husband, of keeping a house of ill fame, if he resides with her in the house. It is held in State v. Bentz (1847) 11 Mo. 27, that a wife as well as her husband can be indicted for keeping a bawdyhouse, because the wife as well as the husband may have a share in the management or government of such house; but there is no holding as to the presumption in such a case. A married woman was convicted of keeping a bawdyhouse in Rex v. Thomas (1736) Cas. t. Hardw. 278, 95 Eng. Reprint, 179. It has been stated that the reason that the presumption does not apply in prosecutions for keeping a bawdyhouse is that "this is an offense as to the government of the house, in which the wife has the principal share, and also such an offense as may generally be presumed to be managed by the intrigue of her sex." 1 Hawk. P. C. § 12, quoted in State v. Gill (1911) 150 Iowa, 210, 129 N. W. 821, and State v. Jones (1903) 53 W. relating to the keeping of bawdyhouses, and adds that this principle would cover, "we are inclined to think, abducting girls by solicitation, for immoral purposes, -a business in which the defendant was more likely to be

than under the coercion of her husband."

band, in the commission of an offense against the law, if the facts so justify, and she not acting under coercion or duress, and that she was so acting is not suggested by the testimony. In holding that a husband and wife may be indicted jointly for keeping a bawdyhouse, the court in Reg. v. Williams (1795) 10 Mod. 63, 88 Eng. Reprint, 626, states that "keeping the house does not necessarily import property, but may signify that share of government which the wife has in a family as well as the husband."

But in Com. v. Hill (1887) 145 Mass. 305, 14 Ν. Ε. 124, a prosecution of the husband for keeping a house of ill fame, the court states that, "in offenses like that charged in this indictment, there is a presumption of law that acts done by the wife in the immediate presence of her husband are done by her under coercion from him."

Whatever may be the rule as to the presumption of coercion in the prosecution of a married woman for keeping a disorderly house, the defendant cannot complain upon appeal from a conviction, where the trial court compelled the prosecution to prove that she acted of her own free will, and without coercion by her husband. Com. v. Hopkins (1882) 133 Mass. 381, 43 Am. Rep. 527.

Whether the presumption applies in prosecutions for abduction has been doubted. It is stated in State v. Nowell (1911) 156 N. C. 648, 72 S. E. 590, not to be necessary to decide the question, but that it may well be doubted whether a married woman could avail herself of the defense of presumption of coercion, against a charge of abduction of a girl by persuasion. The court referred to the rule excepting from the presumption offenses of such a nature that they may be committed by the wife alone, without the concurrence of her husband, and refers especially to the rule

b. Minority rule.

In some jurisdictions, there is held to be no presumption that a married woman acted under coercion by her husband in committing criminal acts in his presence, and the wife is, therefore, held subject to criminal liability, unless it is proved as a question of fact that she did act under coercion by him. State v. Hendricks (1884) 32 Kan. 559, 4 Pac. 1050 (murder).

See State v. Clark (1891) 9 Houst. (Del.) 536, 33 Atl. 310, infra, VII.

In Smith v. Meyers (1898) 54 Neb. 1, 74 N. W. 277, an action for criminal conversation in which the defendant requested an instruction to the effect that the wife, in testifying in the case, could not be convicted of perjury on the theory that she was conclusively presumed to commit any crime committed in the husband's presence under compulsion by him. The court, in sustaining the refusal to give the instruction, states that the general rule that a wife is presumed to have acted under coercion by her husband, in committing criminal acts in his presence, "may have the sanction of age, and may have been justified by the social conditions of primitive times. Certain it is that such a presumption runs counter to our broad laws as to the competency of witnesses, and counter to the reason of men, in view of the domestic relations as they now exist, protected by more enlightened custom and a kindlier law." Com. v. Moore (1894) 162 Mass. 441, 38 N. E. 1120, supra, II. a, 1.

See Barker v. State (1911) 64 Tex. Crim. Rep. 106, 141 S. W. 529, supra, II. a, 5.

The Kansas court bases this decision upon the changed condition of society, but does not refer to any stat

ute changing the status of a married woman. In State v. Hendricks (Kan.) supra, a prosecution for murder, the court refers to the exception, sometimes stated to exist, of this crime from the general rule presuming coercion as above stated, but continues: "Giving this presumption its fullest scope-supposing that it has operation at common law in murder cases, as well as in many others-still we do not think it can have any operation in Kansas, and this on account of the changed conditions of our society and institutions. The presumption was probably right, when first adopted, for the state of society which then existed. But it cannot be right now, under our present condition of society. And it is not the law. There was once a reason for the presumption, but that reason has long ago ceased to exist in Kansas; and, when the reason for the presumption has ceased to exist, the presumption itself must also cease to exist. Of course it is still the law that where a wife, in the presence of her husband and under his coercion, commits an act which would under other circumstances be an offense, she should not be considered as guilty of any offense; but there would be no presumption of law, in such a case, that she acted under the coercion of her husband; but the question as to whether she did in fact act under his coercion, or not, would be a question of fact for the jury, and should be left to the jury."

In State v. Ma Foo (1891) 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222, a case which follows the general rule, it is stated that "there is little in the present organization of society upon which the prima facie presumption itself can stand, and certainly nothing calling for any extension of the presumption."

A doubt was expressed in United States v. De Quilfeldt (1881) 5 Fed. 277, whether the rule applies in the Federal courts, where there is no common law of crimes, but where all crimes are statutory. But see United States v. Terry (1890) 42 Fed. 317, supra, II. a, 1.

III. Statutes affecting common-law rule. Under the modern Married Woman's Acts, it has been held that this rule of the common law no longer exists, and a married woman is responsible for her crimes as if sole. MORTON V. STATE (reported herewith) ante, 264. In an action to recover a forfeiture brought by the commissioners of excise, a married woman in possession of real estate, on which she was carrying a separate business of her own, was held subject to the penalty in Board of Excise v. Palmer (1886) 3 N. Y. S. R. 200. The court states: "By the several enabling acts in favor of married women, the husband no longer has any right to the use or control over the real or personal property of the wife, and, while he still remains liable for her strictly personal torts, he is not liable for any act of hers connected with the control and management of her real estate, or the business conducted by her thereon. The use by her of her separate real estate for unlawful purposes makes the act one relating to her separate estate, and for which she alone is liable."

But a statutory provision that a "woman shall retain the same legal existence and legal personality after marriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man, and for any injury sustained to her reputation, person, property, character, or any natural right she shall have the same right to appeal in her own name alone to the courts of law or equity that her husband has to appeal in his own name alone," does not deprive the wife of the protection afforded her under another statute, providing that "a subjection sufficient to excuse from punishment may be inferred in favor of a wife, from the fact of coverture, whenever she committed the act charged in the presence and with the assent of her husband." Neys v. Taylor (1900) 12 S. D. 488, 81 N. W. 901. The court states that under this statute any part that the wife might have taken in the offense complained of, committed while in the husband's presence, will be presumed to be with assent of the husband, unless the contrary appears.

Some statues have rendered a married woman immune from prosecution for any crime or misdemeanor committed while acting under the threats, commands, or coercion of her husband. An early Arkansas statute required that "married women acting under the threat, command, or coercion of their husbands shall not be found guilty of any crime or misdemeanor, if it appears from all the facts and circumstances of the case that violence, threats, commands, or coercion were used." Under this statute it was held in Freel v. State (1860) 21 Ark. 212, that the presence of the husband when the crime was committed did not raise the presumption of compulsion in all cases, but it must appear from all the facts and circumstances of the case that coercion was used. A similar holding under this statute appears in Edwards v. State (1872) 27 Ark. 493.

The Georgia statute provides that "a feme covert, or married woman, acting under the threat, command or coercion of her husband, shall not be found guilty of any crime or misdemeanor, not punishable by death or perpetual imprisonment; and with this exception the husband shall be prosecuted as principal, and if convicted, shall receive the punishment which would otherwise have been inflicted on the wife, if she had been found guilty, provided it appears from all the facts and circumstances of the case, that violence, threat, command and coercion were used." Under this statute, it is held in Bell v. State (1893) 92 Ga. 49, 18 S. E. 186, that, in order for the wife to stand excused of a crime on the ground of the presence of her husband, it must appear that she was in fact coerced, or that he used violent threats, command, or some equivalent means of coercion, calculated to overpower her will and render her a passive infant, rather than a voluntary agent of crime. In reliance upon Bell v. State (1893) 92 Ga. 49, 18 S. E. 186, it is stated in Hudson v. Jennings (1910) 134 Ga. 373, 67

S. E. 1037, reported only by syllabi, that a wife might be guilty of violating an ordinance relating to houses of ill fame, although at the time living with her husband, in a house alleged to be one of ill fame.

Section 13 of the Ontario Code provides that no presumption shall be made that a married woman committing an offense does so under compulsion, because she commits it in the presence of her husband. Under this statute, a married woman was convicted of selling liquor without a license, although the sale was made in the husband's presence. Reg. v. McGregor (1895) 26 Ont. Rep. 115.

IV. Harboring husband who is a criminal.

There are certain acts for which a married woman has been held not criminally liable. It has been held that a wife cannot be convicted of harboring her husband, who has committed a felony. Reg. v. M'Clarens (1849) 3 Cox, C. C. (Eng.) 425. In Rex v. Good (1842) 1 Car. & Κ. (Eng.) 185, the attorney general, upon the arraignment on an indictment of a woman for comforting, harboring, and assisting a criminal, refused to introduce evidence on the part of the prosecution, when it appeared that the criminal was the husband of the accused; and this refusal on the part of the attorney general was approved by the court, which stated that a wife cannot be found guilty of comforting and assisting her husband. It has been stated that a married woman shall not "be deemed accessory to a felony for receiving her husband, who has been guilty of it, as her husband shall be for receiving her." 1 Hawk. P. C. chap. 1, § 10.

V. Receiving stolen goods from husband.

In Reg. v. Brooks (1853) 6 Cox, C. C. (Eng.) 148, Dears. C. C. 184, 22 L. J. Mag. Cas. N. S. 121, 17 Jur. 400, 1 Week. Rep. 313, a conviction of a wife for receiving stolen goods from her husband was reversed, and Parke, B., states, that he does not see how, "under any circumstances, a wife can be convicted of receiving from her husband." In accord with this the