Commonwealth v. Munsey , 112 Mass. 287 ( 1873 )

Ames, J.

It is impossible to say, upon this report, that there was no evidence that the sale to Dunakin was made by the defendant. Its weight and effect were for the jury to decide.

With regard to the remaining exception, it has been decided that if a wife, in the absence of her husband, do a criminal act, even in obedience to his order, her coverture will be no defence. Commonwealth v. Murphy, 2 Gray, 510. Commonwealth v. Feeney, 13 Allen, 560. Commonwealth v. Gannon, 97 Mass. 547. In order to make out the defence that she was acting under the coercion or control of the husband, it must appear that he was present at the time. Commonwealth v. Butler, 1 Allen, 4. But in order to establish the fact of his presence, it does not seem to be necessary to show that the act was done literally in his sight. If the husband were near enough for the wife to be under his immediate influence and control, though not in the same room, it is sufficient. Commonwealth v. Burk, 11 Gray, 437. If he were on the premises and near at hand, a momentary absence from the room, or a momentary turning of his back, might still leave her under his influence. Commonwealth v. Welch, 97 Mass. 593. The instructions given to the jury may have led them to suppose that there could be no influence and control capable of exonerating the wife, unless the husband were literally present, and in sight of the wife. Exceptions sustained.