Seiler v. . the People , 77 N.Y. 411 ( 1879 )

The proof of marriage was not conclusive and uncontradicted. There was testimony which, if relied upon by the jury, was enough to uphold a verdict that the plaintiff in error was married, and that the man who went by the name of Brown was her husband. But there was also testimony the other way. It consisted in her declaration that she was not his wife. She was indicted as a femme sole, and pleaded, which wasprima facie evidence that she was unmarried; (Quinn's Case, 1 Lewin, 1; Reg. v. Woodward, 8 C. P., 561.) The volume of the testimony is the largest on the side of the marriage. Perhaps the weight of it is. But there was contradiction, and it was for the jury to say.

It is a general rule of law that persons are excused from those acts which are not done of their own free-will, but in subjection to the power of others. And as to persons in private relations, the principal case where such constraint is allowed as an excuse for criminal misconduct, is that of a wife, based upon the idea of her matrimonial subjection to her husband. She will not be made to suffer for a larceny done by his coercion, or in his company which the law construes as coercive. But the coercion from being in his company is only presumed; and if it appear that she was not urged or drawn to the offence by him, but was an inciter of it, she is as guilty as he. If she steal of her own will, or by the bare command of her husband or his procurement, she is liable as well as he: (Reg. v. Buncombe, 1 Cox C.C., 183; Rex v. Hughes, 1 Russ. on Cr., *22 [41].) The presence of the husband is not an absolute excuse, it gives only a primafacie presumption of coercion.

The most that can be claimed for the evidence in this case is, that the plaintiff in error was in company with the man Brown, just before and just after the larcenous act. She was not near to him when it was done. He was 200 feet or more away. It may be that his eye was upon her, and that she knew it; no more than that.

It was not error for the court, therefore, to state to the jury the distance off which Brown was shown to be; especially as it was stated, on which to remark to them, that it was for them to say whether that fact did not rebut the presumption that she was coerced by him, and to find whether she was in his presence.

The request to charge, that if the four conspired to steal, she must be presumed to be coerced by him, if when she entered the store he was at the entrance, was well denied. His command or procurement would not excuse her; (See supra.) The theft was not done while he was at the entrance. He had passed on, before that. It is the presence of the husband at the thieving act, which raises the presumption.

The court was right in telling the jury that the questions were: Whether Brown was her husband; and was present when the theft was done. It was right in refusing to charge, that the facts were proven from which coercion was to be presumed; for the presence of Brown at the act was not proven. There was no error on the trial.

The judgment should be affirmed.

All concur.

Judgment affirmed.