commits an offense in the presence of her husband. That she was more active than he in the commission of the crime does not render her guilty, since her guilt does not depend upon her activity, but upon whether it was voluntary or caused by her husband's coercion, although it is a circumstance which may be considered in rebutting the presumption of coercion.* A married woman cannot be held criminally responsible for violating a contract which is void because made without the consent of her husband." § 105. Presumption of coercion and rebuttal thereof. mon law, when a married woman commits an offense in the presence of her husband it is presumed that she acted by his coercion, and she must be acquitted in the absence of evidence to the contrary. 3 See § 105, infra. 4 State v. Martini, 80 N. J. L. 685, 78 Atl. 12; State v. Houston, 29 S. C. 108, 6 S. E. 943. 5 So she cannot be convicted for the statutory offense of wilfully refusing to work crops on land rented to her, and for wilfully abandoning the same before paying advances made by her landlord, where the contract of lease is void because made without the written consent of her husband. State v. Robinson, 143 N. C. 620. 6 United States. United States v. Terry, 42 Fed. 317. Alabama. Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684; Braxton v. State, 17 Ala. App. 167, 82 So. 657. And see Strouse v. Leipf, 101 Ala. 433, 14 So. 667, 23 L. R. A. 622, 46 Am. St. Rep. 122. Illinois. Merrill v. Marshall, 113 Ill. App. 447. Iowa. State v. Gill, 150 Iowa 210, 129 N. W. 821; State v. Harvey, 130 Iowa 394, 106 N. W. 938; State v. Fertig, 98 Iowa 139, 67 N. W. 87; State v. Kelly, 74 Iowa 589, 38 N. W. 503; State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148. See also Dennis v. Harris, 179 Iowa 121, 153 N. W. 343; State v. O'Neil, 147 Iowa 513, 126 N. W. 454, 33 L. R. A. (N. S.) 788, Maine. State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422. Massachusetts. Com. v. Adams, 186 Mass. 101, 71 N. E. 78; Com. v. Moore, 162 Mass. 441, 38 N. E. 1120; Com. v. Hill, 145 Mass. 305, 14 N. E. 124; Com. v. Pratt, 126 Mass. 462; Com. v. Eagan, 103 Mass. 71; Com. v. Gannon, 97 Mass. 547; Com. v. Burk, 11 Gray 437. Michigan. People v. Wright, 38 Mich. 744, 31 Am. Rep. 331. Missouri. State v. Miller, 162 Mo. 253, 62 S. W. 692, 85 Am. St. Rep. 498; State v. Ma Foo (State v. Baker), 110 Mo. 7, 19 S. W. 222, 33 Am. St. Rep. 414; Billingsley v. Kline Cloak Co., 196 Mo. App. 534, 196 S. W. 415. New Jersey. State v. Grossman, N. J. L. 110 Atl. 711; State v. Martini, 80 N. J. L. 685, 78 Atl. 12. New York. People v. Ryland, 97 N. Y. 126; Seiler v. People, 77 N. Y. 411; Board Com'rs of Excise v. Keller, 20 How. Pr. 280. North Carolina. State v. Nowell, 156 N. C. 648, 72 S. E. 590; State v. Williams, 65 N. C. 398. Ohio. Tabler v. State, 34 Ohio St. 127; Davis v. State, 15 Ohio 72, 45 Am. Dec. 559. But this presumption may always be rebutted by proof that she acted of her own free will, and not by his coercion, and, if this is shown, she is as fully responsible as a feme sole. "The question of Pennsylvania. Pa. Co. Ct. 73. Rhode Island. State v. Shee, 13 R. I. 535. Com. v. Dwyer, 29 South Carolina. State v. Houston. 29 S. C. 108, 6 S. E. 943. See also Edwards v. Wessinger, 65 S. C. 161, 43 S. E. 518, 95 Am. St. Rep. 789; City Council v. Van Roven, 2 McCord 465. South Dakota. This is the rule by statute. Neys v. Taylor, 12 S. D. 488, 81 N. W. 901. Tennessee. Morton v. State, 141 Tenn. 357, 209 S. W. 644, 4 A. L. R. 264. Vermont. State v. Potter, 42 Vt. 495. Virginia. Uhl v. Com., 6 Gratt. 706. West Virginia. Gill v. State, 39 W. Va. 479, 20 S. E. 568, 26 L. R. A. 655. 45 Am. St. Rep. 928. And see Kellar v. James, 63 W. Va. 139, 59 S. E. 939, 14 L. R. A. (N. S.) 1003. England. Anon., W. Kelyng, 28; Rex v. Price, 8 Car. & P. 19. 7 United States. United States v. Terry, 42 Fed. 317. Iowa. State v. Kelly, 74 Iowa 589, 38 N. W. 503. Maine. State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422. Massachusetts. Com. v. Adams, 186 Mass. 101, 71 N. E. 78; Com. v. Dailey, 148 Mass. 11, 18 N. E. 579; Com. v. Hill, 145 Mass. 305, 14 N. E. 124; Com. v. Hopkins, 133 Mass. 381, 43 Am. Rep. 527; Com. v. Pratt, 126 Mass. 462; Com. v. Gannon, 97 Mass. 547; Com. v. Lewis, 1 Metc. 151. Michigan. People v. Wright, 38 Mich. 744, 31 Am. Rep. 331. Missouri. State v. Miller, 162 Mo. 253, 62 S. W. 692, 85 Am. St. Rep. 498; State v. Ma Foo (State v. Baker), South Carolina. State v. Houston, 29 S. C. 108, 6 S. E. 943; State v. Collins, 1 McCord 355; State v. Parkerson, 1 Strobh. 169. See also Edwards v. Wessinger, 65 S. C. 161, 43 S. E. 518, 95 Am. St. Rep. 789. Tennessee. Morton v. State, 141 Tenn. 357, 209 S. W. 644, 4 A. L. R. 264. Virginia. Uhl v. Com., 6 Gratt. 706. West Virginia. Gill v. State, 39 W. Va. 479, 20 S. E. 568, 26 L. R. A. 655, 45 Am. St. Rep. 928. Wisconsin. Jones v. Monson, 137 Wis. 478, 119 N. W. 179, 129 Am. St. Rep. 1082; Miller v. State, 25 Wis. 384. England. Reg. v. Torpey, 12 Cox C. C. 45; Rex v. Hughes, 2 Lewin C. C. 229. "Her conduct, even in her husband's presence, may be such as alone and by itself to overcome the pre fact to be determined is whether she really and in truth acted under such coercion, or whether she acted of her own free will and independently of any coercion or control by him." 8 When an offense is committed by a woman in the absence of her husband, coercion is not presumed, for no presumption arises from the mere fact of coverture; but coercion may be shown as a fact.9 To give rise to the presumption of coercion, however, the presence of the husband need not have been at the very spot where the offense was committed, nor even in the same room, but it is sufficient if he was near enough for the wife to be under his immediate control or influence.10 sumption." Com. v. Adams, 186 Mass. 101, 71 N. E. 78. In Com. v. Moore, 162 Mass. 441, 38 N. E. 1120, it was held that since, under a statute, a wife could not be compelled to be a witness on an indictment against her husband, there was no presumption of coercion where a wife testified in favor of her husband on a criminal prosecution, and committed perjury. And see Smith v. Myers, 54 Neb. 1, 74 N. W. 277; Rex v. Dix, 1 Russ. Crimes 147. Where there is evidence showing freedom of action by the wife, the question whether the presumption has been rebutted by the facts proved is one for the jury. State v. Grossman, N. J. L. 110 Atl. 711. 8 Com. v. Adams, 186 Mass. 101, 71 N. E. 78; Com. v. Daley, 148 Mass. 11, 18 N. E. 579. Where a wife choked a man, and told him to keep still, while her husband picked his pockets, it was held that the jury were justified in finding that she was not acting under coercion. People v. Wright, 38 Mich. 744, 31 Am. Rep. 331. 9 Indiana. Pennybaker v. State, 2 Blackf. 484. Iowa. State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148. Maine. State v. Nelson, 29 Me. 329. Massachusetts. Com. V. Roberts, England. 2 East P. C. 559; Brown v. Attorney General (1898), App. Cas. 234, 18 Cox C. C. 658; Reg. v. John, 13 Cox C. C. 100; Reg. v. Cohen, 11 Cox C. C. 99; Rex v. Hughes, 2 Lewin C. C. 229; Rex v. Morris, Russ. & R. 270. She is not protected by his order or direction unless she is within his presence and control, so as to be presumed by law to act by his coercion. Com. v. Feeney, 13 Allen (Mass.) 560; Com. v. Butler, 1 Allen (Mass.) 4. There is no such presumption although the offense was committed by command of the husband given before he left. State v. Potter, 42 Vt. 495. 10 State v. Fertig, 98 Iowa 139, 67 The presumption of coercion arising from the presence of the husband has been abrogated by statute in some states.11 And even in the absence of statute some courts have held that it no longer exists in view of the changed status of married women 12 under mod N. W. 87; Com. v. Flaherty, 140 Mass. 454, 5 N. E. 258; Com. v. Munsey, 112 Mass. 287; Com. v. Burk, 11 Gray (Mass.) 437; State v. Grossman, N. J. L., 110 Atl. 711; State v. Martini, 80 N. J. L. 685, 78 Atl. 12; State v. Nowell, 156 N. C. 648, 72 S. E. 590. "The test of his presence does not require proof of a formal command on his part to her to do the act, but rather is limited to the inquiry whether his proximity could have exerted an immediate influence and control over her.' State v. Martini, 80 N. J. L. 685, 78 Atl. 12. The act need not have been begun in the husband's presence if it is completed in his presence, as where she takes a revolver to him while he is confined in jail, for the purpose of aiding him to escape. State v. Miller, 162 Mo. 253, 62 S. W. 692, 85 Am. St. Rep. 498. In Conolly's Case, 2 Lewin C. C. 229, a wife went from house to house uttering base coin, her husband accompanying her, but remaining outside. It was held that she was not guilty. "No exact rule applicable to all cases can be laid down as to what degree of proximity will constitute such presence, because this may vary with the varying circumstances of particular cases. And where the wife did not act in the direct presence of her husband, or under his eye, it must usually be left to the jury to determine incidentally whether his presence was sufficiently immediate or direct to raise the presumption. But the ultimate question, after all, is whether she acted under his coercion or control, or of her own free will, in dependently of coercion or control by him; and this is to be determined in view of the presumption arising from his presence, and of the testimony or circumstances tending to rebut it, if any such exist." Com. v. Daley, 148 Mass. 11, 18 N. E. 579. In State v. Shee, 13 R. I. 535, it was held that mere proximity without actual presence will not start the presumption of coercion, but that the question in such case is one of fact, and that the jury may infer coercion from proximity. 11 In Arkansas, by force of a statute, the presence of the husband is no defense unless it affirmatively "appear from the circumstances in the case that violence, threats, commands, or coercion were used." Edwards v. State, 27 Ark. 493; Freel v. State, 21 Ark. 212. In Georgia, under the Code, in order that the wife may be excused by the presence of her husband it must appear that she was in fact coerced, or that he used violent threats, command or some equivalent means of coercion calculated to overpower her will and render her a passive instrument rather than a voluntary agent of crime. Bell v. State, 92 Ga. 49, 18 S. E. 186. See also Hudson v. Jennings, 134 Ga. 373, 67 S. E. 1037; Bigby v. Warnock, 115 Ga. 385, 41 S. E. 622, 57 L. R. A. 754. 12 Dalton v. People, 68 Colo. 44, 189 Pac. 37; State v. Hendricks, 32 Kan. 559, 4 Pac. 1050; King v. City of Owensboro, 187 Ky. 21, 218 S. W. 297; Morton v. State, 141 Tenn. 357, 209 S. W. 644, 4 A. L. R. 264. Smith v. Myers, 54 Neb. 1, 74 N. W. 277, holding that there is no conclu ern laws, although other courts have adhered to a contrary view.13 $106. Particular offenses. The principle that a woman is not responsible for offenses committed under coercion by her husband and the presumption of coercion in respect to offenses committed in his presence, have been applied to larceny, 14 receiving stolen goods, 15 burglary,16 breaking and entering a dwelling house,17 arson, robbery, 19 mayhem,20 assault and battery,21 forgery, 22 abortion,28 uttering counterfeit money, selling intoxicating liquors,25 or obscene 24 sive presumption that perjury committed by the wife in the husband's presence is committed under his compulsion. See State v. Seahorn, 166 N. C. 373, 81 S. E. 687. 13 Braxton v. State, 17 Ala. App. 167, 82 So. 657; Com. v. Gannon, 97 Mass. 547. And see State v. McDaniel, 1 Houst. Cr. Cas. (Del.) 506; Kellar v. James, 63 W. Va. 139, 59 S. E. 939, 14 L. R. A. (N. S.) 1003. In South Dakota the statutory presumption of coercion is not affected by the statute providing that a woman shall retain the same legal existence and personality after marriage as before marriage. Neys v. Taylor, 12 S. D. 488, 81 N. W. 901. 14 Seiler v. People, 77 N. Y. 413; Anon., Lib. Ass'n, 137, pl. 40; Rex v. Knight, 1 Car. & P. 116. "If a ceorl steal a chattel and bear it into his dwelling, and it be attached therein, then shall he be guilty for his part, without his wife, for she must obey her lord. If she dare to declare by oath that she tasted not of the stolen property, let her take her third part.", Laws of King Ina, Cap. 57. See also Bracton, bk. 3, Cap. 32. 15 Goldstein v. People, 82 N. Y. 23; State v. Houston, 29 S. C. 108, 6 S. E. 943. 16 Anon., W. Kelyng, 28. 17 Neys v. Taylor, 12 S. D. 488, 81 N. W. 901. 18 State v. Harvey, 130 Iowa 394, 106 N. W. 938; Davis v. State, 15 Ohio 18 72, 45 Am. Dec. 559; Uhl v. Com., 6 Gratt. (Va.) 706. 19 People v. Wright, 38 Mich. 744, 31 Am. Rep. 331; Quinlan v. People, 6 Park. Cr. (N. Y.) 9; Reg. v. Dykes, 15 Cox C. C. 771; Reg. v. Torpey, 12 Cox C. C. 45. 20 State v. Ma Foo (State v. Baker), 110 Mo. 7, 19 S. W. 222, 33 Am. St. Rep. 414; Reg. v. Smith, Dears. & B. C. C. 553, 8 Cox C. C. 27. · 21 Com. v. Gannon, 97 Mass. 547; Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105; State v. Williams, 65 N. C. 398; State v. Parkerson, 1 Strobh. (S. C.) 169. 22 People v. Ryland, 28 Hun (N. Y.) 568, aff'd 97 N. Y. 126. 23 State v. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148; Tabler v. State, 34 Ohio St. 127. 24 Rex v. Price, 8 Car. & P. 19; Conolly's Case, 2 Lewin C. C. 229; Rex v. Hughes, 2 Lewin C. C. 229. 25 Alabama. Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684; Braxton v. State, 17 Ala. App. 167, 82 So. 657. Iowa. State v. Fertig, 98 Iowa 139, 67 N. W. 87. Maine. State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422. Massachusetts. Com. v. Burk, 11 Gray (Mass.) 437. North Carolina. State v. Seahorn, 166 N. C. 373, 81 S. E. 687. Pennsylvania. Pa. Co. Ct. 73. Com. v. Dwyer, 29 |