also the entrails of fowls, concealed about the house and premises; and the two male prisoners, who were at home in the house, were apprehended. The prisoner, William Hill, upon being told by the constables, on their first arrival, that they were come about Mr. Smith's fowls, said "he had not had a fowl on his premises for a fortnight." The prisoner, William Hill, is the husband of the prisoner, Catherine Hill, and the father of the prisoner, James Hill.

The prisoners were not defended by counsel.

The jury found a verdict of guilty against all the prisoners, but the chairman, William Dickins, Esq., entertaining some doubt whether this indictment could be sustained against the female prisoner as a receiver of goods stolen by her husband, respited the sentence upon her until the next Midsummer Quarter Sessions, in order that in the meantime the opinion of the court above might be obtained as to the propriety of the conviction of Catherine Hill.

On Saturday, 23d June, A. D. 1849, Wilde, C. J., read the following judgment. (WOLFE, B., CRESSWELL, J., V. WILLIAMS, J., PLATT, B., were present): The prisoner was convicted of receiving a quantity of fowls, knowing them to have been stolen. A case was reserved, which states in substance that William Hill (the husband of the prisoner) and James Hill, were convicted of stealing the fowls in question; and the prisoner was (with them) indicted for receiving the fowls knowing them to have been stolen, and the facts stated in the case affecting the prisoners, are that after the fowls had been stolen at Marton, in the county of Warwick, the prisoner's husband sent them in a hamper, without a direction by a coach to Birmingham, it being stated at the time of the delivery at the coach office, a person would call for the hamper at Birmingham. The hamper arrived at Birmingham, and the prisoner went to the coach office and inquired for it; when the hamper was shown to her by the coachman and the prisoner claimed it as the parcel she had come for, upon which she was taken into custody by a police constable, who said to her, that the fowls were believed to be the property of Mr. Smith, of Marton, and the prisoner said that the fowls had been sent to her from Stourbridge, and the question is whether upon this evidence Catherine Hill was rightly convicted.

The case has been considered by the judges of the present Court of Appeal, and we are of opinion that the conviction was wrong, and that according to the evidence the prisoner never did in fact receive the fowls, nor even had the power of doing so.

Whoever had possession of the fowls at the coach office where the prisoner claimed to receive them, never parted with the possession, and the prisoner was immediately taken into custody. The prisoner, by claiming to receive the fowls which never were actually or potentially in her possession, never in fact or law received them, therefore the conviction was wrong.

Another question was reserved for the judges, namely, how far the fact of the fowls having been sent to the prisoner by her husband, would be urged as a legal excuse for her having received them, although she knew them to be stolen. That question it has been unnecessary to consider, as the prisoner never did in fact or law receive the fowls at all.

In R. v. Brooks,1 The prisoner, a married woman, was indicted for receiving stolen goods. The evidence showed that the property had been stolen by the husband from his employer, and afterward taken home and given to his wife. Held, that the wife could not be convicted.

1 Dears. C. C. 184, (1853).

The prisoner, Elizabeth Brooks, was indicted at the Liverpool Borough Sessions, before Gilbert Henderson, Esq., recorder of the said borough for feloniously receiving dressing cases, bell corals, pencil cases, and other goods, the property of Everard Eastee, well knowing them to have been stolen.

Henry Brooks, the husband of the prisoner, had been for several years employed as salesman by Everard Eastee, a shopkeeper, residing in Liverpool, and who dealt in dressing cases, and other articles mentioned in the indictment. In the course of the year, 1852, Henry Brooks stole from Eastee's shop the articles mentioned in the indictment, and delivered them into the hands of the prisoner, his wife. None of the articles were missed before the prisoner's apprehension, and whether they were stolen at one time, or at different times, or whether they were delivered to the prisoner at one time or at different times, did not distinctly appear. On the first suspicion of his dishonesty, Henry Brooks absconded, and was not subsequently taken into custody. His house was searched, and a box was then taken from the prisoner, after some struggle on her part to retain it. This box contained a quantity of pawn tickets relating to, and which led to the discovery of, the property mentioned in the indictment, and produced at the trial. Several of these pawn tickets had been given for articles which the prisoner had herself pledged, falsely stating 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 different persons to pledge some of the articles produced, and had afterwards received the pawn tickets and money lent by the pawnbrokers. The prisoner, in her defense, said she did not know the things were stolen. The jury were told by the learned recorder 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, on considering the evidence, they were perfectly satisfied that at the time when the prisoner received all or any of the articles produced she knew that they were stolen, and in receiving them acted not by reason of any control or coercion of her husband, but voluntarily, and with a dishonest and fraudulent intention, she might be found guilty. The jury, after some deliberation, returned a verdict of guilty. As the prisoner was undefended and the learned recorder entertained doubts as to the law, he reserved for the consideration of the judges the questions, whether his direction was right, and whether, on the evidence stated, there was any case to have been left to the jury.

Judgment was postponed, and the prisoner committed to the Liverpool gaol until the decision of the judges.

On the 23d of April, A. D. 1853, this case was argued before JERVIS, C. J., PARKE, B., ALDERSON, B., WIGHTMAN, J., and CRESSWELL, J.

JERVIS, C. J. Does any counsel appear for the prisoner?

Brett. No, my Lord. I feel bound to state that this is a point upon which the learned recorder entertained much doubt, and the simple question which I shall submit to the court is, that though it be true that if a felony be committed by a feme covert in the presence of her husband, the law presumes that she acted under his immediate coercion, and excuses her from punishment;1 still this presumption may be rebutted by evidence, and if it appear that the wife was principally instrumental in the commission of the crime, acting volun

tarily, and not by restraint of her husband, although he was present and concurred, she will be guilty and liable to punishment.1

JERVIS, C. J. Have you any authority precisely in point?

Brett Not precisely.

PARKе, B. It is quite clear as stated in the case before us, that the prisoner must have received the stolen goods from the hands of her husband. In that view it is difficult to see how she could be guilty of this offense.

Brett. I can only submit that the presumption, like any other presumption of law may be rebutted. I do not think it necessary to do more than call attention to the second point, as to whether there was any evidence to go to the jury.

PARKE, B. Last assizes I directed an acquittal in a case very similar to the present.

JERVIS, C. J. This is a very clear case. It fails in both points. If there had been plenty of evidence there would have been no case to go to the jury, but it appears there was no evidence at all. It is clear this conviction is wrong.

PARKE, B., ALDERSON, B., WIGHTMAN, J., CRESSWELL, J., concurred. Conviction quashed.

In R. v. Archer,2 the prisoner and his wife were indicted for burglary and receiving stolen goods. The judge told the jury that generally speaking the law does not impute to the wife those offenses which she might be supposed to have concurred in by the coercion or influence of her husband and particularly where his house is made the receptacle of stolen goods; but if the wife appears to have taken an active and independent part, and to have endeavored to conceal the stolen goods more effectually than her husband could have done, and by her own acts, she would be reponsible as for her own uncontrolled offense. On appeal all the judges 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 the husband, and they recommended a pardon for her.

§ 40. Wife Assisting Husband to Perform an Abortion on Third Person.— - In State v. Fitzgerald,3 a married woman was indicted for an attempt to produce a miscarriage on another woman. It appeared that the attempt was made by the defendant's husband, and that the defendant went after the complaining witness and brought her to her husband at the time the attempt was made, the pregnancy having resulted from the illicit intercourse of defendant's husband with the pregnant woman. The court held that evidence that the defendant had consented to or connived at this illicit intercourse had no tendency to overthrow or rebut the legal presumption that the assisting the attempt to produce a miscarriage, being done in the presence of defendant's husband, was done under his coercion, and it was error to admit such evidence for such a purpose.

"The defendant," said ROTHROCK, C. J., "is a married woman. There was evidence upon the trial tending to show that she went to the house where the complaining witness resided, and induced her to go part of the way to defendant's house, stating that the defendant's husband wanted to see her, and that

11 Hale, 516.

2 1 Mood. 145 (1826).

349 Iowa, 260.

if there was anything wrong he could bring her round. The parties met defendant's husband, who told the witness to come to him, which she did, and the defendant then went away. It was upon this occasion that the husband of defendant made the alleged attempt to produce the miscarriage. This occurred about May 1, 1876. The State interrogated the witness as to conversations with defendant in October previous. She testified that defendant told the witness that she knew her husband had had criminal intercourse with the witness, and that she did not care. She also testified that defendant, at another time, requested her to meet her husband. Objection to this evidence was overruled, and the same was admitted as tending to negative the presumption of coercion of the defendant by her husband. The court, we think, correctly instructed the jury that a prima facie case of coercion was established when it was shown that the defendant was a married woman, and that the criminal act was done in the presence of the husband, and that this presumption might be rebutted by evidence that the acts of the wife were done by her while not in her husband's presence, nor so immediately near him as fairly to be held under his control, and in his presence. Now, how the consent of the wife to the husband's illicit intercourse with the prosecuting witness, months before the alleged crime was committed, would tend to rebut the presumption or coercion, in the attempt to produce a miscarriage, we are at a loss to discover. True, it tends to show that the wife connived at her husband's adultery, but its effect would rather be to show that, instead of acting independent of the coercion of her husband, she was so entirely under his control as to consent to his adulterous intercourse with the prosecuting witness. No wife of any individuality, self-respect, or independence of thought or action, would consent to such a crime against herself. In our opinion this evidence should not have been admitted. If it had no other tendency it was calculated to prejudice the defendant in the estimation of the jury. We are the more ready to so hold in view of the fact that the defendant showed by quite a number of witnesses that she was a woman of good character."

So as to uttering counter

Coercion of Wife - Uttering Counterfeit Coin. feit coin by the wife in her husband's presence.1 "William and Mary Atkinson were indicted for disposing of forged banknotes, and it appears 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 for 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

R. v. McGinnes,3 is a recent and interesting English case. The prisoner, Sarah McGinnes, was indicted for uttering and putting off to Sophia White, at Stapleton, on the 5th of November, 1869, a counterfeit sixpence, and upon the same day uttering a similar base coin to Hannah Chynick, at Cadeby. Hensman, prosecuted. The facts were as follows: On the 5th of November, Sophia White, and the landlady of the Nag's Head, at Stapleton, saw the prisoner

1 R. v. Price, 8 C. & P. 19 (1837).

? R. v. Atkinson, in 1 Russ. Cr. 47.

3 11 Cox, 391 (1870).

and a man pass by with a truck; the prisoner came back for a pint of ale and tendered sixpence in payment, which proved counterfeit. A witness named Cobley watched the prisoner and the man, and saw the man rub the six pence and give it to the prisoner, who went into the Nag's Head. Hannah Chynick, of Cadeby, proved that the female prisoner gave her a counterfeit sixpence in payment for some tobacco and matches. A police constable named Peberdy, apprehended the man and woman together. He told the man he wanted to speak to him, when he pulled a small white packet out of his pocket, threw it over the hedge and ran away. The packet was subsequently found to contain thirty-eight counterfeit sixpences. When taken into custody, the prisoner, Sarah McGinnes, said she knew nothing about bad coin; the man said, "she is innocent of the charge;" but in the prisoner's presence and hearing said, "she is not my wife." The prisoner made no answer. The prisoner ought to have been tried at the last winter assizes when the man was convicted, but her trial was postponed in consequence of her confinement. It did not transpire in what name the child was baptized. BAYLES, J., to the jury. — There is no doubt the prisoner uttered these counterfeit coins, and had she been a stranger to the man, there would be no difficuity in convicting her. It is a matter of uncertainty whether the prisoner was married to the man or not. When the constable addressed her as the male prisoner's wife he said, "she is not my wife," and that being uttered in the woman's presence and hearing without any comment from her would in an ordinary civil case, be strong evidence that she was not. But if she thought fit to hold her tongue, this being a criminal charge, her silence ought not to be construed so strictly against her. The prisoner had been delivered of a child, but there was no evidence one way or the other what name the child was known by. The man on each occasion of the uttering was sufficiently near to exercise coercion. There was no distinct evidence that the female prisoner was married, but her name was the same at the male prisoner. If they doubted the marriage, then they ought to convict the prisoner, but if, taking all the circumstances into consideration they thought she was McGinnes' wife, then to acquit her. Not guilty.

§ 42. "In Presence of Husband"— Extended Construction of this Phrase.— Though the cases say that the presumption of coercion arises only where the crime is committed by the wife "in the presence of " the husband, yet a very extended construction has been given to this phrase. It is held that the husband need not be actually present; it is sufficient if he be near enough to have his wife under his immediate influence and control.1

Tested by this principle a wife has been excused when she has acted as a decoy away from her husband's presence, but in obedience to his orders.

In R. v. Connelly, the prisoner, Sarah Connelly, was indicted for uttering base coin. The evidence was that she had gone from house to house uttering base coin, and that her husband accompanied her to the door, but did not go in. BAYLEY, J., directed the jury to infer that she was acting under the coercion of her husband and to find her not guilty.

"Another strong case is that of Elizabeth Ryan, better known by the name of Paddy Brown's wife, who was tried at the Old Bailey under the statute of 16 George II., for conveying implements of escape to her husband, who was in New

1 Com. v. Murray, 112 Mass. 187 (1873). 2 R. v. Smith, 8 Cox, 27 (1858.)

3 2 Lewin 229 (1829).

4 ch. 31.