against the person of another, both the person who orders such force to be used and the person using that force is responsible for its use, and neither of them is justified by the circumstance that he acts in obedience to orders given him by a civil or military superior; but the fact that he does so act, and the fact that

was that he was acting in obedience to the orders of his superior officer. It was said by Mr. Justice Washington, in charging the jury: "No military or civil officer can command an inferior to violate the laws of his country, nor will such a command excuse, much less justify, the act. Can it be for a moment pretended that the general of an army, or the commander of a ship of war, can order one of his men to commit murder or felony? Certainly not. In relation to the navy, let it be remarked that the fourteenth section of the law for the better government of that part of the public force, which enjoins on inferior officers or privates the duty of obedience to their superior, cautiously speaks of the lawful orders of that superior. Disobedience of an unlawful order must not, of course, be punishable; and a court martial would, in such a case, be bound to acquit the person tried upon a charge of disobedience. We do not mean to go further than to say that the participation of the inferior officer in an act which he knows, or ought to know, to be illegal, will not be excused by the order of his superior."

See, also, Rex v. Thomas, 1 Russ. Crimes (9th Ed.) 823 4 Maule & S. 442, where a marine on a

the order was apparently lawful, are in all cases relevant to the question whether he believed, in good faith and on reasonable grounds, in the existence of a state of facts which would have justified what he did apart from such orders.” 220

84. Custom and Usage.

If a person does an act which is prohibited and punished by the common law or statute as a crime, he cannot escape responsibility by showing that it was the custom in the particular locality to do the act.221

Application of This Rule.-There are few cases in which this rule has been applied, but there can be no doubt of its soundness. It has been actually applied in some cases. Thus, it has been held, on a prosecution for larceny under certain circumstances, that it

man of war was held guilty of murder where he fired upon a boat which approached the ship after being warned away, and killed a person in it, though he acted in obedience to the orders of his officer. And see U. S. v. Carr, 1 Woods 480, Fed. Cas. No. 14,732; Com. v. Blodgett, 12 Metc. (Mass.) 56.

220 Steph. Dig. Crim. Law, art. 202. See Reg. v. Trainer, 4 Fost. & F. 105, 1 Russ. Crimes, 878.

221 Reg. v. Reed, 12 Cox, C. C. 1, Beale's Cas. 369; Com. v. Perry, 139 Mass. 198.

was no defense to show that it was the custom in the particular locality to take the goods of others under such circumstances.222 So, on an indictment for a riot in making a great noise tumultuously, in the nighttime, by shouting and blowing horns or shooting off guns, as in a charivari, it is no defense to

222 Hendry v. State, 39 Fla. 235; State v. Welch, 73 Mo. 284, 39 Am. Rep. 515; Lancaster v. State, 3 Cold. (Tenn.) 340, 91 Am. Dec. 288; Com. v. Doane, 1 Cush. (Mass.) 5; Lawrence v. State, 20 Tex. App. 536.

As was said in Hendry v. State, supra, there can be no legal custom to justify one man in stealing the property of another, as such a custom would be contrary to law, and bad.

A defendant indicted for larceny, in whose possession a portion of the cargo of a vessel is found, under circumstances which, if unexplained, would authorize a jury to presume a felonious taking by him, is not entitled, in order to negative the inference of an intent to steal, to give evidence of a custom for the officers of vessels to appropriate a small part of the cargo to themselves, or to prove that instances had occurred in which the mates of vessels, under a claim of right, had appropriated to themselves parts of the cargoes in their possession. Such evidence is inadmissible, because the custom, which it purports to prove, is wanting in the elements of a legal custom, and cannot be sustained as such. Com. v. Doane, 1 Cush. (Mass.) 5.

show that it was the custom to do such acts. 223 And on an indictment against a public officer for embezzlement in appropriating the public moneys unlawfully, a custom among public officers to use or appropriate moneys in such a way is no defense.224 In an English case,

custom to bathe at a certain place was set up by bathers to defeat a prosecution for unlawful and indecent exposure of their persons in the sight of others passing and repassing on a highway, and to the common nuisance of the subjects of the queen; but the custom, though shown to have existed for more than half a century without complaint, was held to be no defense.225

V. RESPONSIBILITY OF MARRIED

WOMEN.

85. In General.-A married woman is criminally responsible for any offense committed of her own free will, but she is not responsible for offenses,

223 Banku v. State, 4 Ind. 114. And see post, § 425.

224 Bolln v. State, 51 Neb. 581, 595.

225 Reg. v. Reed, 12 Cox, C. C. 1, Beale's Cas. 369. On a prosecution for maintaining a common nuisance by keeping a large number of swine in the neighborhood of certain dwellings and highways, it is no defense to show that it is a custom to tolerate the location of such establishments in populous localities. Com. v. Perry, 139 Mass. 198.

other than treason or murder, committed under coercion by her husband. There is a presumption of coercion, rebuttable by the state, if the husband was present when the offense was committed, or so near as to be able to exert an immediate control or influence.

"226

It is a well-settled doctrine, said by Blackstone to have been recognized in England for at least a thousand years, that if a woman commits larceny, burglary, "or other civil offenses against the laws of society," by the coercion of her husband, she is considered as acting under compulsion and not of her own will, and is not guilty of any crime; and, as we shall see, there is a rebuttable presumption of coercion if she commits an offense in the presence of her husband.227

86. Particular Offenses.

The principle that a woman is not responsible for offenses committed under coercion

226 4 Bl. Comm. 28. By this phrase, Blackstone meant to exclude treason, murder, and perhaps other offenses prohibited by the law of nature. See post, § 86.

227 4 Bl. Comm. 28; 1 Hale, P. C. 45; Anon., Lib. Ass'n, 137, pl. 40, Beale's Cas. 272; Anon., W. Kelyng 28, Beale's Cas. 273; Reg. v. Dykes; 15 Cox, C. C. 771, Beale's Cas. 274; Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105; and cases hereafter cited.

See valuable note in 33 Am. St. Rep. 89-96.