Commonwealth v. Tryon , 99 Mass. 442 ( 1868 )

Gray, J.

The law is clear that a husband and wife may be jointly indicted, and, upon sufficient proof, both convicted. Commonwealth v. Murphy, 2 Gray 512, 513. Such convictions upon such indictments have been sustained for keeping a bawdy* house or a common gaming-house. Regina v. Williams, 1 Salk. 384, and 10 Mod. 63. The King v. Dixon, 10 Mod. 335. The offence of keeping a common nuisance by maintaining a house used for the illegal sale and illegal keeping of intoxicating liquors has no peculiarity to distinguish it in this respect, for the wife may take an active part in its management. Indeed keeping a house resorted to for purposes of prostitution or illegal gaming might be punished under the very statute on which this indictment is founded, or such resorting might even under proper allegations be given in evidence in the same case as the mode of use charged in this indictment. Commonwealth v. Davis, 11 Gray, 48. Commonwealth v. Taylor, 14 Gray, 26. The guilt of the wife might be shown by evidence of her participation in the offence charged by acts done in the absence of her husband and not appearing to have been done by his coercion. Commonwealth v. Murphy, above cited. Commonwealth v. Feeney, 13 Allen, 560. The proof in this case of the wife’s being in the house, and of her acts and declarations in the husband’s absence, was sufficient to warrant the jury in convicting her; and it is not denied that he was properly convicted.

Exceptions overruled.