Commonwealth v. Eagan

103 Mass. 71

Opinion

Morton, J.

The assault of which the defendant was convicted was committed in the immediate presence of her husband. The presumption of law is, that she acted under his coercion. Commonwealth v. Gannon, 97 Mass. 547. Commonwealth v. Burk, 11 Gray, 437. It was a right of the defendant to have this principle of law stated to the jury Her counsel asked the court to instruct the jury “ that the presumption was that she acted under the coercion and control of her husband, and should be acquitted.” If there was evidence in the case to rebut the presumption in favor of the defendant, the court was justified in refusing to instruct the jury that she should be acquitted; but we think that the first part of the instruction requested should have been given. The instructions actually given would have been accurate if the court had also instructed the jury as to the presumption above stated, but by the refusal to do so the defendant was deprived of the benefit of this presumption as one of the elements proper for the consideration of the jury in determining her criminal liability.

The motion in arrest of judgment, being for a cause existing before verdict, and not affecting the jurisdiction of the court, must be overruled. St. 1864, c. 250, §§ 2, 3.

Exceptions sustained.