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gate, convicted of felony. It appeared that she procured the instruments in question by her husband's direction. She was convicted but afterwards pardoned, it was understood, because the judges considered that she acted under coercion though her husband from being in prison could not be present."1

In R. v. Smith, the wife acting as the jury found, under the coercion of her husband wrote letters to the prosecutor pretending that she had become a widow and requesting a meeting at a distant place. The meeting was granted and the wife, dressed as a widow, met the prosecutor at a railway station, and induced him to go with her to a lonely spot, where the husband fell upon him and inflicted the injuries alleged in the indictment. A verdict of guilty of felonious wounding was entered against both husband and wife, the former was sentenced, but the judge reserved the question of the wife's liability for the full court. It was afterwards considered by POLLOCK, C. B., WILLES, J., BRAMWELL, B., and BYLES, J., who reversed her conviction, POLLOCK, C. B. saying:

"The jury have disposed of this case by their finding. They have found that Sarah Smith was a married woman; that she acted under the coercion of her husband and that she herself did not inflict any violence upon the prosecutor. The conviction, therefore, so far as it extends to her, must be reversed."

In R. v. Hamilton,3 the male prisoner and his wife were indicted for breaking and entering a dwelling-house and stealing goods therefrom. The male prisoner went to the house alone, broke in and carried the goods into a coach. He then drove to a certain point where he met his wife, who was waiting there. She got into the coach and together they drove a little further, both alighting and carrying the bundles home. The court ruled that Mrs. Hamilton must be acquitted, as she appeared to have acted under the influence of her husband.

In Commonwealth v. Burk, a married woman was indicted for selling intoxicating liquors, and it appeared that the sales were made in a dwelling-house, her husband being at the time either within or just outside the house. The prisoner asked the judge to instruct the jury that "if they found that the husband was near enough for the wife to act under under his immediate influence and control, though not in the same room, the wife was not liable for such sale." But the judge instructed them that "if the husband was actually present at the time of the sale, the wife would be presumed to act under his coercion, and could not be found guilty, and that if the wife sold the liquor as the agent and by the authority of her husband, and as such received the money, the jury would be authorized in finding her guilty." Being convicted she appealed to the Supreme Court where the ruling below was held erronous. "The instruction prayed by the defendant," said THOMAS, J., "should, we think have been given. If the wife acts in the absence of the husband there is no presumption that she acts under his coercion. But if the husband was near enough for the wife to act under his immediate influence and control, though not in the same room, he was not absent within the meaning of the law. The wife, acting in the presence of the husband, and under his immediate influence and control is not an agent within the meaning of the statute of 1855.6 The

1 R. v. Knight, 1 C. & P. 116 (1882).

2 Dears. & B. 553 (1858).

1 Leach, 386 (1784).

4 11 Gray, 437 (1858); Com. v. Welch, 97

Mass. 594 (1867).

5 Com. v. Murphey, 2 Gray, 511.

6

⚫ ch. 215, sec. 15.

law regards her as not in the exercise of her own discretion and will, and, therefore, as incapable of committing an offense. How far the usages of society or the new relations of husband and wife may have qualified or reversed the presumption of the common law, is for the Legislature, not the court to consider."

§ 43. Marriage in Fact-Proof of Marriage. It would seem that if the woman honestly believes herself to be the man's wife, though she is not so legally, this will be sufficient. If the parties have lived together as man and wife this is presumptive evidence that they are so, and the woman need not establish that she is the man's wife, in order to avail herself of the protection.2

§ 44. Presumption of Coercion - Court must Direct the Jury as to the Rule. The woman is entitled to have the jury instructed as to this presumption, and it is not enough, that they are charged that if she did the act of her own free will she is guilty.3

1 R. v. Good, 1 C. & K. 185 (1842).

2 R. v. Torpey, 12 Cox, 45 (1875). See R. v. McGinness, 11 Cox, 391 (1870).

Com. v. Eagan, 103 Mass. 71 (1869).

CHAPTER III.

INFANCY.

INFANT UNDER SEVEN CAN NOT BE GUILTY OF FELONY - ACTION FOR FALSE IMPRISONMENT.

MARSH v. LOADER.

[14 C. B. (N. s.) 535.]

In the English Court of Common Pleas, Trinity Term, 1863.

1. An Infant under the Age of Seven Years can not be guilty of a felony. 2 False Imprisonment - Case in Judgment,

The defendant caught a child in the act of stealing a piece of wood from his premises, and gave him into custody. The child was discharged by the magistrate, on the ground that he was under the age of responsibility, and he afterwards by his next friend brought an action against the defendant for false imprisonment. Held, that a plea of felony was no answer, and the defendant was liable for damages.

This was an action for trespass and false imprisonment, brought by the plaintiff, an infant, by his father and next friend.

The defendant justified on the ground that the plaintiff was guilty of a felony, whereupon he gave him into custody, and caused him to be carried before a magistrate. Issue thereon.

The cause was tried before KEATING, J., at the first sitting at Westminster in this term. It appeared that the plaintiff's father and the defendant were both builders living near each other; that the defendant had, on several occasions, missed pieces of wood from his premises; and that on one occasion, he saw the plaintiff carry away a piece and take it into his father's house, whereupon he gave him into custody and caused him to be taken before a magistrate, who discharged him.

On the part of the plaintiff, it was proved that he was, at the time of the transaction in question, a month or two under seven years of age, and, therefore, it was submitted, incapable of committing a felony.

The learned judge ruled that the plea was no answer to the action; and the jury returned a verdict for the plaintiff with £20 damages. Powell now moved for a new trial, on the ground of misdirection, that the verdict was against evidence, and that the damages were ex

cessive. He submitted, that, though a child under the age of seven years can not be punished for a felony, there is no authority for saying that he may not lawfully be prosecuted. [ERLE, C. J. An infant under seven years of age can not incur the guilt of felony.]

Take the

case of a lunatic, — he commits an act which in a sane person would be felony; he is put upon his trial and acquitted upon the ground of insanity; but, who ever heard of the prosecutor being sued for giving him into custody? Here, the child was discharged on the ground of his tender years; by parity of reasoning, the party giving him into custody should not be held liable to an action. In Hawkins' Pleas of the Crown it is said that "the guilt of offending against any law whatsoever, necessarily supposing a willful disobedience, can never justly be imputed to those who are incapable of understanding it, or of conforming themselves to it." It is to be observed that those who are under a natural disability of distinguishing between good and evil, as, infants under the age of discretion (by the law of England, seven years), idiots and lunatics, are not punishable by any criminal prosecution whatsoever. And in the note 2 it is said: "Legal guilt is a violation of positive laws; a crime or misdemeanor may, therefore, be defined the 'willful' commission or omission of any acts in violation of a public law either forbidding or commanding it. This definition comprehends both crimes and misdemeanors, which are synonymous terms, though in common usage the word 'crimes' is made to denote offenses of a deeper and more atrocious dye, while smaller faults and omissions of less consequence are comprised under the gentler name of 'misdemeanors.' 3 But the act done or omitted, in order to be criminal, must be willful. The consent of the will is that which renders human actions either commendable or culpable, and where there is no will to commit an offense there can be no transgression, saith Sir Matthew Hale. That learned judge then goes on to state those causes which the law of England notices as excusing the fact from incapacity or defect of will, which he classes as follows: (1) natural; (2) accidental; (3) civil incapacities or defects. The natural is that of infancy. The accidental defects of will are: (1) dementia; (2) casualty or chance; (3) ignorance. The civil defects or want of will: (1) civil subjection; (2) compulsion; (3) necessity; (4) fear." [ERLE, C. J.-That disposes of your plea.] Infancy should have been replied. At all events the damages are excessive. [ERLE, C. J. — We can not interfere on that ground. ]

PER CURIAM. The ruling of the learned judge was perfectly correct, and we see no ground for finding fault with the verdict.

Bla. Com. lib. 4, ch. 1.

Rule refused.

1 p. 1.

2 p. 1.

4 Hale P. C., ch. 2.

INFANCY-BETWEEN SEVEN AND FOURTEEN INCAPACITY
PRESUMED.

STATE v. ADAMS.

[76 Mo. 355.]

In the Supreme Court of Missouri, October Term, 1882.

1. An Infant between the Ages of Seven and Fourteen is presumed to be incapable of committing crime and the onus is on the State to prove his criminal intent.

2. Case in Judgment. — A negro boy only twelve years of age, when he committed the homicide, was found guilty of murder in the first degree. Held, that the instruction of the trial court, which virtually told the jury that defendant's age should not affect the conclusion at which they should arrive, any more than if he had been of mature age, was clearly wrong. Between the ages of seven and fourteen years the law presumes the infant doli incapax, and the onus is on the State to overcome this prima facie case of incapacity to commit crime; and this must be done by "evidence strong and clear beyond all doubt and contradiction."

ERROR to Morgan Circuit Court, Hon. E. R. EDWARDS, Judge.
James A. Spurlock and A. W. Anthony, for plaintiff in error.

D. H. McIntyre, Attorney-General for the State.

SHERWOOD, J. The defendant, a negro boy, twelve years old at the time of the trial, October 21, 1882, was indicted for murder in the first degree, having killed Henry Ostermann, about seventeen years old, by stabbing him with a pocket knife August 1st of that year.

Walton McNair, a small boy, twelve years of age, was the only witness who saw the stabbing, and testified that he saw it occur on the hay field as follows: "Henry and Tom were fussing; Henry called Tom a liar; Henry said if Tom called him a liar again he would knock him down with the pitchfork; Tom called Henry a liar again, and then Henry jumped out of the wagon and took Tom by the arm, and struck him over the head with the handle of his pitchfork. He had Tom by the arm and Tom had one hand in his pocket and pulled out the knife, open, and reached up and stabbed Henry. After Henry was stabbed, Tom got loose and started to run, then Henry picked up a rock and knocked him down, and then went and beat him with a pitchfork. Levi Smith halloed to him to quit. Then Henry quit and came back and said he was cut in two, and went and laid down and died in a few minutes." The evidence shows that he was stabbed in the heart with the penknife of Mrs. Silvey, his mistress, the blade being about two inches and one-half long, and slender; also that Henry lay down sick from the wound. Tom got water and poured it on his head, trying to revive him. But when he died Tom started off, and was traveling the main road to Tipton, when he was arrested, about a mile off, and brought back. After

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