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Dundy, D. J. Suit is brought on ordinary county orders, or warrants drawn on the county treasurer, to the amount of $3,000. The orders were drawn on the ninth day of July, 1874, and were presented to the county treasurer, and payment thereof demanded, and indorsed not paid for want of funds, on the eleventh day of July, 1874. Judgment is demanded for $3,000, with interest at 10 per cent. per annum from July 11, 1874.
The building of a court-house usually involves the necessity for an extraordinary outlay of money, and the necessity of resorting to an extraordinary remedy to raise money and supply the funds to pay therefor. The ordinary county revenue is usually insufficient, even if available, therefor. And, when it becomes necessary to build a court-house for the convenience of a county, there is a well-known method provided by law for raising the funds and authorizing the work to be done. Sections 14, 15, 16, 17, 18, 19, 20, 21, 22, c. 13, pp. 234, 235, 236, Gen. St. of Nebraska, fully explain the modus operandi. A county cannot well build a $10,000 courthouse with an empty treasury and bankrupt in credit to commence with. When it is undertaken, disaster usually overtakes the enterprise, as it did in this instance. Now I must hold that, when a county desires to build a court-house, if it has not on hands a sufficient fund which can be applied in payment for such a purpose without doing violence to principle, it must first submit a proposition to the qualified voters of the county, to get permission to incur such extraordinary indebtedness, and for authority to resort to the extraordinary remedy provided for raising the necessary and appropriate funds therefor. This was not done. Without such authority the commissioners could not lawfully contract for the erection of such a building, and without such action on the part of the electors of the county the commissioners were powerless to proceed, however much the building may have been needed. As authority for making such an appropriation of money was. wanting, there was no rightful authority for issuing the warrants sued on. As both acts were wanting in lawful authority
to uphold them, it follows that the warrants are void, and that no recovery can be had on them. This same question has been more fully considered in another case just disposed of, in which Lewis is plaintiff and Sherman county is defendant. That case involved the validity of $5,000 in bonds issued to build a court-house for defendant, and what is said in that case relative to the court-house bonds applies as well to the warrants here under consideration.
Judgment for defendant for costs of suit.
UNITED STATES v. DE QUILFELDT.
(Circuit Court, W. D. Tennessee. January 3, 1881.)
1. CRIMINAL LAW-HUSBAND AND WIFE-MARITAL COERCION-PLEADING
COVERTURE.—If a married woman be described, in an information filed against her alone, as a single woman, or be not described at all as married or single, she may either move to quash the information or plead in abatement for want of a proper addition ; but if she fail to do this, and plead not guilty, that is prima facie evidence that she is not a feme covert. It is not conclusive, however, and she may, under the general issue, prove the marriage, as well as the other facts essen
tial to show marital coercion. 2. SAME SUBJECT-EVIDENCE OF MARRIAGE-NEW TRIAL.-The declara
tions of a man and woman recognizing each other as man and wife, made at the time of their arrest in company with each other while engaged in the act of making counterfeit coins, the fact that they had been cohabiting together, and were reputed to be married, are competent proof of the marriage; and it was error to exclude it as inadmissible under the general issue, the defendant having failed to plead
her coverture in abatement, for which a new trial should be granted. 3. SAME SUBJECT-REJECTION OF PROOF-INSUFFICIENCY-JURY TRIAL.
A new trial will be granted in criminal cases for the improper rejection of competent and material testimony, although in the opinion of the court the evidence rejected was wholly insufficient to establish the issue, because the defendant has a right to the verdict of a jury on all the facts constituting her defence, and the court will not, on a motion for a new trial, undertake to pass on the weight of the proof; and especially is this so where the effect of the ruling rejecting the testimony was to preclude the defendant from offering not only that rejected but any other.
4. SAME SUBJECT-SIMULATED DEFENCE.— Where it appears to the court
from occurrences at the trial that the defendant probably makes a false pretence of being a married woman and under the coercion of a husband, yet if the court improperly rejected competent and material evidence of the marriage, a new trial will be granted in order that the facts may be passed upon by a jury. The necessity of preserving to the defendant the right of trial by jury is paramount to all other considerations, and precludes the court not only from passing on the sufficiency of the proof rejected, but from taking further proof on the motion for a new trial as to the fact of marriage, so as to determine whether the defendant had been injured by the error com
mitted. 6. SAME SUBJECT-MARITAL COERCION IN THE FEDERAL COURTS.
Quere: Whether the common-law fiction that a married woman committing an offence in the presence of her husband presumably acts by his coercion, furnishes any excuse or exemption from the penalties imposed by an act of congress for the commission of statutory crimes, when the statute itself makes no such exception! The opinion is expressed by the district judge that the doctrine probably has no place in the criminal jurisprudence of the United States, but he declined to decide it in the absence of his brother judges.
On Motion for New Trial.
W.W. Murray, Dist. Att'y, and John B. Clough, Ass't Dist. Att'y, for the United States.
M. D. L. Stewart, J. S. Duval, and B. B. Barnes, for defendant.
HAMMOND, D. J. The defendant, being arraigned upon an information charging her with counterfeiting coins, pleaded not guilty, and was put upon her trial. She is described in the information simply as "Annie De Quilfeldt, otherwise known as Annie Egbert;" all addition, such as “wife of A.B.," "widow," or "spinster," being omitted. On the trial, a witness, the detective who arrested her, was asked whether she was not living with Charles G. De Quilfeldt, who had just been convicted of counterfeiting, as his wife; whether they, at the time of arrest, called and recognized each other as such, and whether they were not reported to be man and wife among their neighbors. This testimony was, on objection of the district attorney, excluded. There was proof tending to show that, when the defendan' was caught in the act of moulding the coins, this man, De Quilfeldt, was either present, or so
nearly connected with the act, as to shield her under the doctrine of marital coercion, if she be in fact his wife. He was proved to have been engaged in counterfeiting at his house, where this defendant lived with him. The testimony was excluded, as will appear hereafter, on the ground that by pleading over the defendant had waived the defence of coverture. But the court sought to protect her against the effect of the ruling by offering to allow her to withdraw a juror, enter a mistrial, and then to withdraw the plea of not guilty and plead the want of a proper addition, describing her as married or single, in'abatement. Upon being informed that a plea in abatement must be verified by affidavit, her counsel, upon consultation with her, declined to take this course, and she was convicted. She now moves for a new trial for error committed by the court in excluding testimony tending to show that she was married to De Quilfeldt, and raising the presumption in her favor of coercion by her husband.
Before entering upon the consideration of the question whether the testimony was properly rejected, it may be proper to say that this defence of marital coercion as a protection to women engaged in the commission of crime is not a favored one, and, at least in modern times, has almost lost all solid foundation for its existence. It has been abrogated by statute in some states, and might well be in all. 1 Benn. & Heard, Lead. Crim. Cas.(2d. Ed.) 81, and notes; Steph. Dig. Cr. L. (St. Louis Ed. 1878,) art. 30, p. 20, and note 2, p. 362. It is almost an absurdity in this day to pretend that husbands can or do coerce their wives into the commission of crimes, and, where coercion appears as a fact, the court or jury would always allow it to mitigate punishment, or it might well be a recommendation to executive clemency; but to hold it to be presumed as a fact, in all cases where the husband is present, is the relic of a belief in the ignorance and pusillanimity of women which is not, and perhaps never was, well founded, and does them no credit. I have had serious doubts whether this common-law fiction has a place in the criminal juris
prudence of the United Stater. Our offences ar3 urely statutory, and we do not look to the common law, or thu law of the states, to furnish us any element or characteristic of an offence. U.S. v, Coppersmith, 4 FED. REP. 198; U. S. v. Welsh, 5 Dill. 58.
This statute against counterfeiting says "every person who falsely makes, forges, or counterfeits any coin,” etc., shall be punished. It makes no exception in favor of married women, and it may well be doubted if the courts can engraft an exception on the statute. Commonwealth v. Lewis, 1 Met, 151, 153. I am inclined to believe it is the logical result of the doctrine that our crimes are statutory, and that we have no common law of crimes, except so far as the statutes have adopted it, in matters of evidence and practice, that no exemption exists unless congress defines and declares it. The presumption of coercion may be a rule of evidence, but the exemption of the wife on account of it is a rule of law that congress has not declared. I have not found the point discussed, nor any case recognizing this doctrine of marital coercion, in the federal courts. There are cases recognizing insanity and perhaps infancy as a defence, but, generally, the cases are those of common-law crimes on the high seas or elsewhere, of which these courts have jurisdiction, and which are defined not by statute, but by the adoption by congress of the common law in its fullest scope. Insanity was recognized as a defence to statutory offences in U. S. v. Schultz, 6 McLean, 121, and U. $. v. Lancaster, 7 Biss. 440, and there may be other cases. I am not willing, however, without consultation with my brother judges on this bench, to exclude this defence on that theory, and shall, therefore, for the purposes of this motion, assume that we are to be governed by the common-law principle that a wife committing an offence in the presence of her husband is prima facie presumed to act by his command, and is, therefore, not guilty unless it can be shown that she was in fact not governed by him,
The testimony was excluded on the authority of the statement that “if a feme covert be indicted as a feme sole, her