Morton v. State

141 Tenn. 357

• Court: Tennessee Supreme Court
• Decided: December 15, 1918
• Status: Published

Opinion

Mr. Chief Justice Lansden

delivered the opinion of the Court.

The plaintiffs in error, who are man and wife, were indicted and convicted in the criminal court of Davidson county for violating the so-called Bone Dry Law; (Acts 1917, chapter 12).

In 'February, 1918, information came to the police officers of Nashville, Tenn., that an automobile load of whiskey was en route from Hopkinsville, Ky., to Nashville. Police officers stationed themselves on the Hop-kinsville road near Goodlettsville, in Davidson county, and blockaded the road and arrested plaintiffs in error. They searched the automobile and found “six or eight” sacks in the automobile, each containing about twenty quarts of whiskey. .

The contention is made for Mrs. Morton that the proof fails to show that she had any knowledge of, or interest in, the whiskey, and all that is shown is that she was riding in an automobile with her husband. It is said that she was under the legal duress of her husband, and although he is guilty, she is not, because her presence in the automobile will be attributed by the law to the duress of the husband. Many cases are cited in the brief of learned counsel for this proposition, but in the view which we take of the case it is not necessary to review them all. Shacklett v. Polk, 4 Heisk., 105; Lowry v. Naff, 4 Cold., 370.

Counsel cites the above cases together with many more, which hold in substance that the legal identity of the wife is merged in that of the husband at common law. The cases cited deal with estates of married women, and contain the general statement to the foregoing effect.

It was*also the rule at common law that a married woman was not responsible for crimes committed in the presence of her husband, except murder and treason. However, for crimes committed out of the presence "of the husband she was as capable of and as responsible for as if she were single. If she committed a crime in the presence of her husband, excepting murder and treason, it was presumed that she did so under constraint by him, and she was therefore excused, and he was presumably guilty. State v. Cleaves, 59 Me., 298, 8 Am. Rep., 422; Mulvey v. State, 43 Ala., 316, 94 Am. Dec., 684.

However, the presumption that she acted under the duress of her husband was small, and it might be rebutted by very slight circumstances. State v. Cleaves, supra; People v. Wright, 38 Mich., 744, 31 Am. Rep., 331.

This supposed duress of the wife by the fact of marriage, like all other doctrines built upon the legal identity of husband and wife, must depend upon the disability of the wife by virtue of marriage. By our Married Woman’s Act of 1913 (Acts 1913, chapter 26), the policy of this State was completely changed, so that married women are no longer under the disability of coverture, and are completely emancipated. Gill v. McKinney, 140 Tenn., 559, 205 S. W., 416.

The ease cited declares that it was the intention of the legislature to completely emancipate married women, except where such emancipation either is not permitted by a, proper construction of the act, or the court is forbidden by sound public policy to attribute such an intention to the legislature. The public policy of the State with respect to the disability of the wife, because of the fact of marriage, is declared by the act* referred to, and common law is completely abrogated. See, also, 8 R. C. L., p. 65; 12 Cyc., p. 161.

If the presumption existed in this State that the wife was acting under the duress of her husband, it would be rebutted by the facts of this case. The evidence required for such rebuttal is very s!ig¡ i ing to show the size of the automobile employed by the Mortons, but it is. shown that it contained “six or eight” sacks of whiskey, containing twenty quarts each. The automobile with the whiskey was apprehended by some means not disclosed, and the police officers at Nashville were notified that it was moving from Hopkinsville to Nashville, loaded with whiskey. We think Mrs. Morton must have known of the presence of the whiskey in the automobile, and her guilty knowledge is not attributable to anything other than the quantity of whiskey. She did not testify in the case, and there is nothing to indicate that she was not a participánt in the offense of her husband. She rests her case exclusively upon the legal presumption that she was acting under the presumed duress from her husband. We hold this is not sufficient. The case is therefore affirmed./ -