Wagener v. Bill , 19 Barb. 321 ( 1855 )

By the Court,

Welles, J.

It is an established general doctrine that a married woman is not punishable for committing a crime in the presence of, and by the command or coercion of her husband. The rule, however, does not extend to such offenses as are mala in se and prohibited by the laws of nature, or to those which are highly heinous'. [Barb. Cr. Law, 2d ed. b. 3, ch. 3, pp. 274 to 278. 1 Russell on Crimes, pp. 17 to 24, 5th Am. from 3d Lond. ed. 2 Starkie’s Ev. 398, 5th Am. ed. by Metcalf, Ingraham & Gerhard, from a new Lond. ed. 1834. Roscoe’s Cr. Ev. 955, 6. 4 Bl. Com. 28, 29. Commonwealth v. Neal, 10 Mass. R. 152.)

Whether this exemption of the wife extends to mere misdemeanors, the authorities do not agree. The case of the Commonwealth v. Neal, {supra,) was an indictment for an assault and battery, and the rule was held to apply ; and Chancellor Kent says “the husband is liable for the torts and frauds of the wife committed during coverture. If committed in his company, or by his order, he alone is liable. If not, they are jointly liable, and the wife must be joined in the suit with her husband.” (2 Kent’s Com. 149.) (See also Barb. Cr. L. 276, supra.) In a note to 4th Bl. Com. Dean’s N. Y. ed. 1838, it is said, “ In all misdemeanors it appears that the wife may be found guilty with her husband. It is said the reason why -she was excused in burglary, larceny, &c. was because she could not tell what property the husband might claim in the goods. (10 Mod. 63, 335.) But the better reason seems to be, that by the ancient law, the husband had the benefit of clergy, if he could read, but in no case could women have that benefit; it would therefore have been an odious proceeding to have executed the wife and to have dismissed the husband with a slight punishment; to avoid this it was thought better that, in such cases, she should be altogether acquitted. But this reason did not apply to misdemeanors.” In Starkie’s Evidence above referred to, it is laid down that the doctrine does not extend to assaults and batteries, or as it seems, to any other forcible and violent misdemeanors committed jointly by the husband and wife. There are many other authorities to the same effect. Indeed, it seems to be the settled rule in the English courts ; and in Virginia it was held that a joint action of trespass might be maintained against the husband and wife for a joint assault and battery by them both. (Roadcap v. Sipe, 6 Gratt. 213.)

But to whatever class of cases the doctrine in question is to be limited, we are entirely clear that the presumption of coercion which the law raises where the acts complained of are done by the wife in the presence of the husband, is only prima facie, and, like other presumptions may be repelled. (2 Kent's Com. 150. Starkie's Ev. supra. Russ. on Cr. 22. Commonwealth v. Lewis, 1 Metc. 151, 3.)

In the present case, the evidence shows clearly that the wife defendant was the principal and only offender. There is reason to believe that the dispute between the female parties to the action had its origin in some gossip concerning an affair of gallantry between the male plaintiff and the female defendant, on account of which the latter was peculiarly sensitive; and in which, perhaps, the female plaintiff felt a little solicitude. Be that as it may, no one can fail to see from the evidence, that so far from any coercion having been employed by the husband defendant, all that he appears to have done of an offensive character, was the application of an opprobrious epithet to his fair adversary, and not even that, until after he had left the house, and after his wife, under the influence of her own excited feelings, had reproached him for not taking part in her quarrel; and this Parthian arrow of the retreating husband was not discharged until after his pugnacious wife had committed the assault and battery complained of. It is merely ridiculous to call this coercion by the husband. If there was any coercion it was by the wife, and her only. It was at least clearly a case to have been submitted to the jury.

Again, even assuming this was a case of coercion by the husband, it was no ground for nonsuiting the plaintiff. On the hypothesis mentioned, the husband was clearly liable. The action was joint and several in its nature, and it was entirely competent to convict the husband and acquit the wife if she was exempt from liability by reason of the coercion of her husband or for any other cause.

[Monroe General Term, March 5, 1855.

Johnson, Welles and T. R. Strong, Justices.]

For both of the foregoing reasons we think the judgment should be reversed, and a new trial ordered in the county court; with costs to abide the event.

Ordered accordingly.