question is whether words have been uttered with a deliberate purpose, or are merely low and idle expressions, the drunkenness of the party uttering them is proper to be considered. (y) But if there is really a previous determination to resent a slight affront in a barbarous manner, the state of drunkenness in which the prisoner was, ought not to be regarded; for it would furnish no excuse. (y) So, upon an indictment for stabbing, the jury may take into their consideration, among other circumstances, the fact of the prisoner being drunk at the time, in order to determine whether he acted under a bona fide apprehension that his person or property was about to be attacked. (2) So on an indictment for an assault, in considering whether the prisoner apprehended an assault upon himself, the jury may take into consideration the state of drunkenness in which he was. (a) Where a man feloniously wounded another while suffering from delirium tremens it was held that he was insane at the time he committed the act. (b)

Subjection to power of others.-III. Persons are properly excused from those acts which are not done of their own free will, but in subjection to the power of others. (c) Thus, though a legislator establish iniquity by a law, and command the subject to do an act contrary to religion and sound morality; yet obedience to such laws, while in being, is a sufficient extenuation of civil guilt before the municipal tribunal; though a different decree will be pronounced in foro conscientiæ. (d) And actual force upon the person and present fear of death may, in some cases, excuse a criminal act. Thus, although the fear of having houses burnt or goods spoiled is no excuse in law for joining and marching with rebels, yet an actual force upon the person and present fear of death may form such excuse, provided they continue all the time during which the party remains with the rebels. (e) 1 And in general the person committing a crime will not be answerable if he was not a free agent, and was subject to actual force at the time the act was done. Thus, if A. by force take the arm of B., in which is a weapon, and therewith kill Č., A. is guilty of murder, but not B.: but if it be only a moral force put upon B., as by threatening him with duress or imprisonment, or even by an assault to the peril of his life, in order to compel him to kill C., it is no legal excuse. (f) An idiot or lunatic, or a child so young as not to be punishable for his criminal act, when made use of for the purpose of committing crimes, are merely the instruments of the procurer, who will be answerable as a principal. (g) As to persons in private relations, the principal case where constraint of a superior is allowed as an excuse for criminal

(y) R. v. Thomas, ibid.

(z) Marshall's case, 1 Lewin, 76. J. A. Park, J. Goodier's case, ibid. Parke, J.

(a) R. v. Gamlen, 1 F. & F. 90. Crowder, J.

(b) R. v. Davis, 14 Cox, C. C. 563.

(c) 1 Hale, 43. 4 Blac. Com. 27.

(d) 4 Blac. Com. 27.

(e) Per Lee, C. J. 18 Sta. Tri. 393, 394. R. v. Tyler, 8 C. & P. 616.

(f) 1 Hale, 433. 1 East, P. C. c. 5, s. 12, p. 225.

(g) 1 Hawk. P. C. c. 31, s. 7. 1 East. P. C. c. 5, s. 14, p. 228.

AMERICAN NOTE.

1 See U. S. v. Haskell, 4 Wash. C. C. 102. U. S. v. Vigol, 2 Val. 346.

misconduct proceeds upon the matrimonial subjection of the wife to her husband; for neither a child nor a servant is excused the commission of any crime, whether capital or not capital, by the command or coercion of the parent or master. (h)

Feme covert.1 But a feme covert is so much favoured 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, or even a burglary, by the coercion of her husband, or in his company, which the law construes a coercion. (i) But this is only the presumption of law; so that if upon the evidence it clearly appear that the 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. (j) And if she commit a theft of her own voluntary act, or by the bare command of her husband, or if she be guilty of murder, treason, or robbery, (k) in company with, or by coercion of her husband, (kk) she is punishable as much as if she were sole. (1) And she will be guilty in

(h) 1 Hale, 44, 516. 1 Hawk. P. C. c. 1, s. 14. Moor. 813. Kel. 34.

(i) 1 Hale, 45. 1 Hawk. P. C. c. 1, s. 9. 4 Blac. Com. 28. Kel. 31. According to some, if a wife commit a larceny by the command of her husband, she is not guilty; which seems to be the law if the husband be present, but not if he be absent at the time and place of the felony committed. 1 Hale,

45.

(j) 1 Hale, 516. 2 Hawk. P. C. c. 29, s. 24.

(k) It seems this is not so as to robbery, see R. v. Torpey, 12 Cox, C. C. 45, and R. v. Dykes, 15 Cox, C. C. 771, where Stephen, J., directed a wife to be acquitted on an indictment for highway robbery with violence jointly with her husband, the jury having found that she had acted under her husband's compulsion. See note (1) infra.

(kk) R. v. Buncombe, 1 Cox, C. C. 183. (7) 1 Hawk. P. C. c. 1, s. 11. 1 Hale, 45, 47, 48, 516. Kel. 31. 2 Blac. Com. 29. The reason given is the heinousness of those crimes. I find no decision which warrants the position in the text, as to treason, murder, or robbery. Somerville's case, 1 And. 104, which is the only case where husband and wife have been convicted of treason, only shows that a wife may be convicted of treason with her husband. There Arden and his wife were charged with procuring Somerville to destroy the Queen, and both found guilty, but as none of the evidence is stated, it may have been that the wife was the instigator, and both properly convicted. In Somerset's case, which is the only case of a wife convicted, as well as her husband, as an accessory to a murder, according to 3

As

Inst. 50, the Earl and Countess were indicted as accessories before the fact, to the murder of Sir T. Overbury, the wife was arraigned alone first, and pleaded guilty, and being asked what she had to say why judgment of death should not be given against her, she said, 'I can much aggravate, but nothing extenuate my fault.' (2 St. Tr. 957.) suming, therefore, that the indictment was joint against both, the case only proves that the wife may properly be convicted upon her own confession, which indicates that she was the more guilty party; as it is clear she was in this case. See Hume's Hist. Eng. vol. 6, p. 68, &c. But as the Earl and Countess were separately arraigned, and on different days, and as the indictment against the Earl, as recited in his pardon (2 St. Tr. 1014), is against him alone, I infer that the Countess was indicted alone; if so, the case is merely that of a wife pleading guilty to an indictment charging her alone as accessory, and unless in such a case she either pleaded that she committed the offence in company with her husband (as it seems she may,

In

Hale, 47. M. 37, Ed. 3. Rot. 34), or such appeared to be the case upon her trial, no question as to coercion could arise. R. v. Alison, 8 C. & P. 418, Patteson, J., mentions an old case, where a husband and wife, intending to destroy themselves, took poison together; the husband died, but the wife recovered, and was tried for the murder, and 'acquitted solely on the ground that, being the wife of the deceased, she was under his control, and inasmuch as the proposal to commit suicide had been first suggested by him, it was considered that she was not a free agent;' but I know from the very

AMERICAN NOTE.

1 See Davis v. S., 15 Ohio, 72; Freel v. S., 21 Ark. 212.

the same manner of all those crimes which, like murder, are mala in se, and prohibited by the law of nature. (m) 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. (n) But upon an indictment for disposing of forged notes, it was ruled that a woman was protected by being the wife of a man with whom she was indicted, who disposed of them in her presence. (0) So, where on an indictment against husband and wife for feloniously wounding with intent to disfigure, the jury found that the wife acted under the coercion of her husband, and did not herself personally inflict any violence upon the prosecutor, it was held, that she ought to have been acquitted. (p)

Where, on an indictment against husband and wife for jointly receiving stolen goods, it appeared that a burglary was committed by their two daughters, who were traced to Cranbrooke, where their father and mother then lived, with a quantity of the property stolen, with which they went towards their father's house; and on the same night, between nine and ten o'clock, the mother and her two daughters went to the house of a draper, and brought (q) two trunks, a red and a blue one, and a person who lived next door to the prisoners saw them and their two daughters, on the next day, in the kitchen, where the two daughters were packing a blue box, and the two boxes were afterwards found in London, in consequence of a statement made by the wife, who, when the house was searched, denied that any of the stolen goods were in it, and made various other false statements; and a quantity of the stolen property was found concealed in different parts of the house; the jury found both the husband and wife guilty; it was held, that as the charge against the husband and wife was joint, and it had not been left to the jury to say whether she received the goods in the absence of the husband, the conviction of the wife could not be supported, though she had been more active than her husband. (r)

On an indictment against husband and wife for receiving stolen sugar it appeared that the husband received it in the first instance in the absence of his wife. Some remains of the sugar were found on searching in a sink in the kitchen, and the wife stated that she and her daughter had washed all the sugar away, and that they had burnt the bags in which it was contained, and that she thought it a hard case that she and her husband should be at a loss of four or five pounds. Coltman, J., told the jury that if the husband received the property, knowing it to be stolen, and if the wife received it from him with the like knowledge, and with the purpose of aiding and assisting him in the object which he had in view in receiving it, by turning it to pecuniary profit or in other like manner, although prima facie she might be supposed to be acting under the coercion of her husband, that was rebutted by the active part which she took in the matter with the intention above mentioned. But if the part she took was merely for the purpose of concealing her husband's guilt, and of screening him from the consequences, then she ought to be acquitted. A wife cannot be convicted of harbouring her husband, when he has committed a felony, and the mere circumstance of her attempting to conceal what may lead to his detection appears to come within the same principle.' (s) On an indictment against a wife for receiving stolen goods, it appeared that her husband stole the goods from a shop, and delivered them into her hands. Whether the articles were stolen at one or at several times, or delivered to the prisoner at one or at different times, did not appear. The husband absconded, his house was searched, and a box taken

under the 11 & 12 Vict. c. 46, s. 1, she ought to have been convicted as such accessory. C. S. G.

(7) So in the report; quære, bought.

(r) R. v. Archer, R. & M. 143. The marginal note is upon a joint charge against husband and wife, of receiving stolen goods. the wife cannot, properly, be convicted, if the husband is,' which seems not to be war

ranted by the case, which, at most, only decides that where there is no evidence whatever that the wife was present when the goods were received, or of her conduct when they were received, she ought not to be jointly convicted with her husband. C. S. G.

(s) R. v. M'Clarens, 3 Cox, C. C. 425. The wife was acquitted.

from the prisoner, after a struggle on her part to retain it. It contained pawn-tickets which related to the stolen goods. Several of these tickets had been given for articles pledged by the prisoner, who falsely stated as to some that they were birthday presents, and as to others that they were articles in which she dealt. In two instances the prisoner had sent persons to pledge some of the articles, and had received the pawn-tickets and money lent by the pawnbrokers. The jury were told that, as her husband had delivered the stolen articles to the prisoner, the law presumed that she acted under his control in receiving them; but that this presumption might be rebutted: if therefore they were satisfied that at the time when the prisoner received the articles she knew that they were stolen, and in receiving them acted not by reason of any coercion of her husband, but voluntarily, and with a fraudulent intention, she might be found guilty; and on her being found guilty the questions were reserved, whether the direction was right, and whether on the evidence there was any case for the jury; and it was held that the case failed on both points; if there had been plenty of evidence there would have been no case to go to the jury; but it appeared that there was no evidence at all. (t)

Where, on an indictment for larceny, it appeared that the goods were found in the house of the prisoner's husband, who was a blind man, and when they were found the prisoner said she had bought them a long time before; Erle, J., said that if the prisoner had said nothing, and the goods had simply been found in the house of the husband, there would have been no evidence to go to the jury. But as she said she bought the goods, it must be left to the jury to decide whether the goods were in the possession of the prisoner or her husband; and the jury were told that if they were of opinion that the goods were in the possession of the wife without the consent and control of her husband, they must find her guilty. (u)

The prisoner was indicted together with her husband and one Prishous for burglary and receiving. The jury found Prishous guilty of housebreaking, and the prisoner and her husband of receiving. Part of the stolen property was found in the house where the prisoner and her husband lived together, and the evidence warranted the jury in convicting the husband of receiving; but the only evidence which affected the prisoner was that, some time after the robbery, in the absence of her husband, she produced a quantity of the stolen property, and said it was to be destroyed, and said she had been changing some foreign money, and thought she was going to be taken up for it, and asked a young woman to come down, if she were taken, and say a

(t) R. v. Brooks, 1 Dears. C. C. 184. This decision is clearly right on the ground that there was no evidence whatever as to the guilty knowledge or conduct of the prisoner at the time the goods were received. Parke, B., said that, as the prisoner received the goods from her husband, it is difficult to see how she could be guilty of this offence.' With all deference, it is perfectly easy to suggest cases where a wife may be convicted of receiving stolen goods from her husband. Suppose she incites him to steal a diamond

necklace for her, and he does so in her ab. sence, delivers it to her, and she wears it; or, suppose a thief brings stolen goods to a house, and the husband declines to receive them, but is induced by the wife so to do, and afterwards the husband delivers them to the wife; it cannot be doubted that in these and the like cases she may be convicted, for the plain reason that she is acting in no way under his coercion. C. S. G.

() R. v. Banks, 1 Cox, C. C. 238.