Commonwealth v. Burr

77 Mass. 437

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1858
• Status: Published

Opinion

Thomas, J.

1. The instruction prayed for by the defendant iihould, we think, have been given. If the wife acts in the absence of the husband, there is no presumption that she acta under his coercion. Commonwealth v. Murphy, 2 Gray, 511. But if the husband “ was near enough for the wife to act under his immediate influence and control, though not in the same room,” he was not absent, within the meaning of the law.

2. The wife, acting in the presence of the husband, and under his immediate influence and control, is not an agent within the meaning of the St. of 1855, c. 215, § 15. The law regards her as not in the exercise of her own discretion and will, and therefore as incapable of committing an offence. How far the usages of society, or the new relations of husband and wife, may have qualified or reversed the presumption of the common law, is for the legislature, not the court, to consider.

Exceptions sustained.