should have the advantage of it, but she could not, and was convicted. In Quin's Case1 (which, also, I have not seen), cited also by Russell, it was ruled that if a woman be indicted as a single woman, and pleads to the felony, that is prima facie evidence that she is not a feme covert, but it is not conclusive of the fact.2 Judge Sharswood, in this edition. of Russell, makes in his note a quære "whether the proper course for a woman so indicted is not to plead the wrong addition on arraignment, as by pleading to the felony she answers by the name (sic) by which she is indicted."

The authorities do not satisfactorily answer this quære, as any one may see who examines them. Mr. Russell states that if the woman pretends to be the man's wife the onus is on her to prove it; but where the indictment states the woman to be the wife of the man with whom she is jointly indicted, no evidence is necessary to show that she is the wife.3 The cases cited, however, are all cases where they were indicted jointly, and not precisely like this.

It sufficiently appears, however, from these authorities that, although it may be proper that a woman indicted as a single woman should, if she relies on her coverture, plead in abatement the wrong addition, the failure to so plead it does not preclude her from taking advantage of the defense under the general issue, and she may therefore give evidence of the fact of marriage and the other facts necessary to make out marital coercion. It was, therefore, error to exclude the evidence

offered in this case.

I am quite satisfied, however, from the occurrences at the trial, that this is a simulated defence; yet I can not say that, upon full investigation of the facts, the jury would have so found, and it was certainly a question for the jury to try, and not for the court to now determine upon a motion for a new trial. The defendant, on the proof, was clearly guilty. I am convinced, from her refusal to make affidavit of her marriage, that she was not the wife in fact of her partner in crime; and this conviction has inclined me to accede to the suggestion of the district-attorney, and overrule this motion, notwithstanding any error committed in refusing proof intended only to sustain a false pretense of marriage, upon the ground that she has not been injured by the ruling. And it has occurred to me to say to the defendant now that if she will make affidavit of her marriage in fact to De Quilfeldt, or by proof show the court that there would be sufficient testimony to

11 Lewin C. C. 1.

21 Russ. 24.

1 Russ. Cr. 24.

Rex v. Hassall, 2 C. & P. 434; s. c., 12 E. C. L. 660; Reg. v. Woodward, 8 C. & P.

561; s. c., 34 E. C. L. 891; Rex v. Atkinson, cited 1 Russ. C. L., supra; Reg. v. McGinnis, 11 Cox C. C. 391, cited 3 Jac. Fish. Dig. 3114; Rex v. Knight, 1 C. & P. 116; s. c., 11 E. C. L. 335.

raise a reasonable doubt in the minds of the jury of her guilt, taking into consideration the defence of coverture, that I would grant a new trial, exercising my discretion in the matter without regard to the technical question as to the proper mode of making the defence, or her right to make it under the plea of not guilty. Mr. Baron GARROW said in Rex v. Hassall,1 where a woman was convicted upon insufficient evidence of marriage, that "if the parties, however, be really married, and will make a proper application to the Secretary of State, supported by proof of the marriage, they will sustain no injury by the want of evidence of marriage before me." This implies, I take it, that he would recommend her pardon, and seems to be some support for sustaining a conviction, unless the judge is satisfied some injury has been done. But in that case the jury had passed on the question of marriage, and the very kind of proof the defendant offered in this case was received, although pronounced insufficient by the jury and the court to prove the marriage. It is not, therefore, an authority to uphold the verdict in this case, where the testimony was rejected. The proof offered might not have been sufficient to prove the marriage: but of that the jury was the proper judge, not the court. It was competent evidence, as the case of Rex v. Hassall,2 adjudicates, it being there said "that though, in cases of this kind, it is not absolutely necessary to give direct proof of actual marriage, yet such evidence must be adduced as to satisfy the jury that the parties are in fact husband and wife, in the same way as to convince them of any other fact they are to find." The barrenness of such proof to establish the marriage is well shown, but the court permitted the jury to pass on it, nevertheless, and that too, under a plea of not guilty, though, unlike this case, it was a joint indictment against the man and woman, she being described as a single woman. The real question, in this branch of the case, is whether the court will grant a new trial where it appears that the evidence rejected was competent and tended to prove the issue, but was insufficient for that purpose. In the case at bar I can not say that the proof rejected was all the proof of which the case was susceptible, nor all the defendant would offer. She was precluded by the ruling made from offering this or any proof of marriage, on the ground that she had pleaded over, and thereby waived the defence.

In Peck v. State,3 it was held that if incompetent evidence be admitted in criminal cases, that might have influenced the jury, a new trial will be awarded, although the court may think there was enough, independently of such evidence, to convict the prisoner. It was also held

12 C. & P. 434; s. c., 12 E. C. L. 207.

2 Supra.

2 Humph. (Tenn.) 78.

41 Bish. Crim. Pro. (2d ed.), sec. 1103; 3 Whart. Cr. L. (7th ed.), sec. 3258, note u.

in Commonwealth v. McGowan,1 that after a court has rejected competent and material testimony offered by a defendant charged with crime, the court will not refuse relief on the assumption that the rejected evidence would not have availed the accused if it had been received. Both the above cited authors seem to doubt if this be the general rule, though they put Tennessee down as holding to it, on the authority of Peck's Case.2 That was a case where incompetent evidence was admitted, and not where that which was competent and material was rejected; but I think, on principle, the rule should be the same in either case. Besides, I am of opinion that the adjudications in Tennessee established the principle that a new trial must be granted for the improper rejection of testimony, as well as its improper admission, without reference to the opinion of the court as to its probable effect on the verdict.

In Workman v. State,3 the wife of one jointly indicted with another was rejected as a witness, and the Supreme Court granted a new trial, saying: "Whether a reversal on this point will ultimately result in any advantage to the defendant, is not for us to judge; for, no matter how clear his guilt may be, or how deeply he may be stained with blood, it is our duty to see that he has the benefit of the law under which his punishment is demanded."4 Other cases support the rule.5 Hagan's Case is also applicable on another point; that, after this testimony was rejected, it would have been improper to offer any other proof the marriage wherefore the meagreness of that offered should not be accounted against the defendant on this motion. Perhaps this rule of the State courts is not binding on us here to govern our discretion in granting new trials. But that is immaterial, for I am satisfied with it as the sound rule on the subject, whatever other courts may hold. For the same reason that it would be usurping the functions of the jury, and a practical denial of the defendant's right of trial by jury of all the facts entering as an element into her defence of marital coercion, I can not now, I think, on this motion for a new trial, put her to the proof, by her own affidavit or otherwise, of the fact of marriage as a condition precedens to the grant of her motion. This might save the cost of another trial, and confirm my own suspicions of the falsity of her defence; but, after all, these suspicions are based on her refusal to plead in abatement her marriage, and she might well decline to be coerced by the court into filing a special plea, if she had a legal right to make the defence under

12 Pars. (Pa.) Sel. Cas. 347, cited 3 Whart., supra.

2 Supra.

4 Sneed (Tenn.), 425.

* Id. 428.

5 Stokes v. State, 4 Baxt. (Tenn.) 47; Hagan v. State, 5 Id. 615; State v. Turner, 6 Id. 201.

Railroad Co. v. Horst, 93 U. S. 291.

the general issue. I am too strongly impressed with the necessity of preserving the right of trial by jury to assume its duties, even in a case like this, where I feel almost certain the defence is a false one.

Notwithstanding, then, the unfavorable character of the defence, and an almost certain conviction that the alleged marriage is a false pretence, I feel constrained, by the considerations I have mentioned, to grant a new trial, and it is so ordered.

HUSBAND AND WIFE-ASSAULT AND BATTERY-COERCION.
COMMONWEALTH v. NEAL.

[10 Mass. 152; 6 Am. Dec. 105.]

In the Supreme Judicial Court of Massachusetts, May, 1813.

1. A Married Woman is not Indictable for an assault and battery committed in the presence of her husband.

2. If a Husband and Wife be jointly Indicted for an assault and battery, the former may be convicted and the latter acquitted.

The defendants being husband and wife were indicted at the October term in Cumberland county, in 1812, for an assault and battery. Upon a trial which was held at the same term before Thatcher, J., the jury found the said John guilty; and as to the said Elizabeth, they found specially "that she committed the assault and battery charged in the indictment, in company with and commanded by, the said John Neal her husband. And if this in law will make her guilty, then, the jury find her guilty; but if being in company with and commanded by her husband will justify or excuse her in law, then, the jury find that the said Elizabeth Neal is not guilty."

The indictment was continued to this term for judgment upon this verdict and now

Whitman argued that the wife, acting under the direction and coercion of the husband, was not personally liable to conviction and punishment and this immunity extends to every case, except those of keeping a bawdy-house, and a gaming-house. The jury have found that the wife in this case acted by the command of her husband.1

Morton, Attorney-General, for the commonwealth. The law secures the wife only in cases where she may be supposed ignorant of the

1 4 Bla. Com. 28; 1 Mass. 391, 476; 10 Mod. 63, 335; 1 Salk. 384.

criminality of the act; as in larceny, etc., she may not know in whom the property of the goods is. The husband's commands are no excuse for her when she must know, as well as he, that the action is wrong; as in the case at bar, where she could not be ignorant that it was unjustifiable to beat and wound her neighbor.1

CURIA. The general doctrine is that a feme covert incurs no legal guilt, by the commission of civil offenses, by the coercion of her husband, or even when in his presence. To this general rule there are certain exceptions, as of crimes forbidden by the law of nature which are mala in se, and some where the wife may be presumed the principal' agent. The case at bar is not within the exceptions, and Elizabeth Neal is not guilty and must therefore be discharged.

JOINT INDICTMENT OF HUSBAND AND WIFE-RECEIVING STOLEN GOODS.

R. v. MATTHEWS.

[1 Denison, 596.]

In the English Court for Crown Cases Reserved, 1850.

Receiving stolen Goods-Joint Indictment-Error. -A. and his wife were jointly indicted for receiving a number of stolen fowls. Verdict guilty. The evidence showed either one joint receiving in which case the wife could not be convicted, as the offense was committed in her husband's presence or two several acts of receiving, in which case, as against the wife, the case would not be proved as laid. Held, that the wife was wrongly convicted.

At the Epiphany Quarter Sessions, for the county of Stafford, A. D. 1850, Alexander Jameson and Joseph Tomlinson were charged with stealing a quantity of fowls, and William Matthews and Ellen Matthews, his wife, dealers in poultry, with receiving the same fowls, well knowing them to have been feloniously stolen.

The indictment was as follows:

"Staffordshire. The jurors for our lady the Queen, upon their oath present that Alexander Jameson, late of the parish of Norton Canes, in the county of Stafford, laborer, and Joseph Tomlinson, late of the same, laborer, on the seventeenth day of December, in the year of our Lord one thousand eight hundred and forty-nine, with force and arms at the parish aforesaid, in the county aforesaid, fifteen hen fowls of the value

1 Hawk. P. C., ch. 1, secs. 9, 13. See, also, Bla. Com., ubi supra, and Christian's notes.