SEILER v. PEOPLE.

(Court of Appeals of New York, 1879. 77 N. Y. 411.)

FOLGER, J. The most that can be claimed for the evidence in this case is that the plaintiff in error was in company with the man Brown, just before and just after the larcenous act, She was not near to him when it was done. He was 200 feet or more away.

because she may be the most active in consummating the offense, that this should, as matter of law, make her guilty. On the contrary, the question should still depend on the cause of her increased activity, and not upon the fact of such activity. The presence and constraint of her husband may still be the cause, and not her own wickedness." Simpson, C. J., in State v. Houston, 29 S. C. 108, 6 S. E. 943 (1888).

1 Part of this case is omitted.

"There was a case of arson before me on the Home Circuit. The man and wife were tried together, and it appeared that the man, though present. was a cripple, and bed-ridden in the room, and I held, after conferring with my Lord Chief Justice Tindal, that the circumstances under which the man was repelled the presumption of coercion." Vaughan, J., in Reg. v. Cruse, 2 Moo. 53 (1838).

Under a statute allowing, but not compelling, a wife to testify in a criminal case in which her husband is defendant, if, in giving her testimony, her husband being present, she commits perjury, the presumption of coercion does not arise. Commonwealth v. Moore, 162 Mass. 441, 38 N. E. 1120 (1894). See, also, Smith v. Meyers, 54 Neb. 1, 74 N. W. 277 (1898). Nor does the presumption arise on an indictment for keeping a gaming house, Rex v. Dixon, 10 Mod. 335 (1715); or a bawdy house, Reg. v. Williams, 10 Mod. 63 (1711), even though her husband resided in the house and hired, furnished, and provided for it, Commonwealth v. Cheney, 114 Mass. 281 (1873).

Gantt, P. J., in State v. Ma Foo, 110 Mo. 7, 19 S. W. 222, 33 Am. St. Rep. 414 (1891): "Learned counsel for defendant desire us to ingraft an additional modification on this rule of evidence, and require the state to go further and prove that the husband not only was not the inciter or responsible criminal agent in the commission of the crime, but that he actually disapproved it, and, in the absence of evidence of his disapproval, the wife must be acquitted. This is not the law. There is little in the present_organization of society upon which the prima facie presumption itself can stand, and certainly nothing calling for any extension of the presumption."

Before Somerville's Case, 26 Eliz., and Somerset's Case, A. D. 1615, I find no exception to the general rule that the coercion of the husband excuses the act of the wife. See 27 Ass. 40, Stamf. P. C. 26, 27, 142; Poulton de Pace Regis, 130 Br. Ab. Coron. 108; Fitz. Ab. Coron. 130, 180, 199. But after these cases I find the following exceptions in the books: Bac. Max. 57, except treason only. Dalton, c. 147, treason and murder, citing for latter Mar. Lect. 12 (which I conceive refers to the reading of Marrow, a Master in Chancery in the time of Henry VII. See Willes v. Bridger, 2 B. & A. 282). 1 Hale, P. C. pp. 45, 47, treason, murder, and homicide; and page 434, treason, murder, and manslaughter; Kel. 31, an obiter dictum, murder only; Hawk. b. 1, c. 1, § 11, treason, murder, and robbery; Bl. Com. vol. 1, p. 444, treason and murder; vol. 4, p. 29, treason and mala in se, as murder and the like. Hale therefrom alone excepts manslaughter, and Hawkins introduces robbery, without any authority for so doing; and, on the contrary, in R. v. Cruse, 8 C. & P. 545, a case is cited, where Burrough, J., held that the rule extended to robbery. It seems long to have been considered that the mere presence of the husband was a coercion (see 4 Bl. Com. 28), and it was so contended in R. v. Cruse; and Bac. Max. 56, expressly states that a wife can neither be principal nor accessory by joining with her husband in a felony, because the law intends her to have no will; and in the next page he says: 'If husband and wife join in committing treason, the necessity of

It may be that his eye was upon her, and that she knew it; no more than that.

It was not error for the court, therefore, to state to the jury the distance off which Brown was shown to be; especially as it was stated, on which to remark to them, that it was for them to say whether that fact did not rebut the presumption that she was coerced by him, and to find whether she was in his presence.

The request to charge that if the four conspired to steal she must be presumed to be coerced by him, if when she entered the store he was at the entrance, was well denied. His command or procurement would not excuse her. The theft was not done while he was at the entrance. He had passed on before that. It is the presence of the husband at the thieving act which raises the presumption.

The court was right in telling the jury that the questions were whether Brown was her husband, and was present when the theft was done. It was right in refusing to charge that the facts were proven from which coercion was to be presumed; for the presence of Brown at the act was not proven. There was no error on the trial. The judgment should be affirmed.

Judgment affirmed. All concur.

II. COMMAND.

MEMORANDUM, 1660.

(Kelyng, 13.)

Upon the trial of one Axtell, a soldier who commanded the guards at the King's Tryal, and at his murder; he justified that all he did was as a soldier, by the command of his superior officer, whom he must obey or die. It was resolved that was no excuse, for his superior was a traitor, and all that joined him in that act were traitors, and did by that approve the treason; and where the command is traitorous, then the obedience to that command is also trait

orous.

obedience doth not excuse the wife's offense, as it does in felony.' Dalton cites the exception from Bacon without the rule, and Hale follows Dalton, and the other writers follow Hale; and it seems by no means improbable that the exceptions of treason and murder, which seem to have sprung from Somerville's and Somerset's Cases, and which were probably exceptions to the rule as stated by Bacon, have been continued by writers without adverting to their origin, or observing that the presence of the husband is no longer considered an absolute excuse, but only affords a prima facie presumption that the wife acted by his coercion." Russell on Crimes (International Edition), p. 146, note by Greaves.

{ t

RIGGS v. STATE.

(Supreme Court of Tennessee, 1866. 3 Cold. 85, 91 Am. Dec. 272.)

The plaintiff in error was convicted at the August term, 1866, of murder in the second degree, and sentenced to 15 years' imprisonment in the penitentiary, from which he appealed. Judge James P. Swan, presiding.

SHACKELFORD, J., delivered the opinion of the court.

The plaintiff in error was indicted in the circuit court of Jefferson county for the killing of Capt. Thornhill. A change of venue was had to the county of Grainger. At August term, 1866, of the circuit court of Grainger county, he was convicted by a jury, of murder in the second degree, and sentenced to 15 years' imprisonment in the penitentiary.

A new trial was moved for, which was overruled, and an appeal taken to this court.

The court, among other things not excepted to, charged the jury in substance as follows: "A soldier in the service of the United States is bound to obey all lawful orders of his superior officers, or officers over him, and all he may do in obeying such lawful orders constitutes no offense as to him. But an order, illegal in itself and not justified by the rules and usages of war, or in its substance being clearly illegal, so that a man of ordinary sense and understanding would know, as soon as he heard the order read or given, that such order was illegal, would afford a private no protection for a crime committed under such order, provided the act with which he may be charged has all the ingredients in it which may be necessary to constitute the same a crime in law. Any order given by an officer to his private, which does not expressly and clearly show on its face, or in the body thereof, its own illegality, the soldier would be bound to obey, and such order would be a protection to him. No person in the military service has any right to commit a crime in law, contrary to the rules and usages of war, and outside of the purposes thereof; and the officers are all amenable for all crimes thus committed, and the privates likewise are answerable to the law for crimes committed in obeying all orders illegal on their face. and in their substance, when such illegality appears at once to a common mind, on hearing them read or given." We think there is no error in this charge.

It is a well-settled principle a soldier is not bound to obey an illegal order. If he does, and commits an offense, it is no justification to him, and he is liable to be proceeded against and punished. This principle was settled in the Supreme Court of the United States in the case of Mitchell v. Harmony, 13 How. 129, 14 L. Ed. 75, in

which it was held a military officer cannot rely on an apparently unlawful order of his superior as a justification.

The same principle was recognized and settled in the Court of King's Bench, reported in 1 Cowp. 180. In this case a captain in the English navy, by orders of the British admiral, pulled down the houses of some suttlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, and the health of the sailors was thereby much injured. The motive was a laudable one, and done for the public service. The courts say it was an invasion of the rights of private property without the authority of law, and the officer who executed the order was held liable. This being the rule in civil causes, the principle would be more strictly applied in criminal ones. No order, if any was given, could justify the killing of Capt. Thornhill, and the parties who did the act are amenable to the criminal law. There being no error in the charge of the court, the question arises: Do the facts in the record sustain the verdict of the jury? And under the rulings of this court it is made our duty in criminal causes to examine the proof and see if it warrants the conviction.1

The proof does not satisfy us the prisoner aided or abetted in the unlawful act of killing. A private soldier, when detailed by his superior officer, has no discretion. By the rules of war he is bound to obey the orders of those in command. When he enters the service, unconditional submission to the lawful orders of his superior officers is a duty imposed upon him by his oath and the articles of The principle of law, "when men are assembled for an illegal purpose, and the commission of an offense by any one of the party is the act of the whole," is not applicable to this case. The plaintiff in error being a private soldier, being detailed, was bound to obey the lawful order. The going to Richard Thornhill's without a knowledge of the purpose for which the force was detailed was not an illegal act; he had no right to inquire of the officer the object and purpose of the detail, or what he had in view; and, if he was present, unless he participated in the killing by firing, or aided and abetted in the act of killing, he would not be criminally responsible. It is stated as a principle of law, in 1 Hale, Pleas of the Crown, 444, and which we recognize and approve: "Although if many come upon an unlawful design, and one of the company kill the adverse party in pursuance of that design, all are principals, yet if many be together upon a lawful account, and one of the company kill another of an adverse party, without any particular abetment of the rest to this fact of homicide, they are not all guilty that are of the company, but only those that gave the stroke, or actually abetted them to do it." We forbear to comment further upon the testimony, as

1 Part of the opinion is omitted.

the case will undergo another investigation before a jury. We are not satisfied, from the proofs in this record, with the verdict of the jury.

The judgment will be reversed, and a new trial awarded.'

RESPUBLICA v. MCCARTY.

(Supreme Court of Pennsylvania, 1781. 2 Dall. 86, 1 L. Ed. 300.)

The defendant was indicted for high treason, in levying war, etc., by joining the armies of the king of Great Britain.

MCKEAN, C. J. The crime imputed to the defendant by the indictment is that of levying war, by joining the armies of the king of Great Britain. Enlisting, or procuring any person to be enlisted. in the service of the enemy, is clearly an act of treason. By the defendant's own confession it appears that he actually enlisted in a corps belonging to the enemy; but it also appears that he had previously been taken prisoner by them and confined at Wilmington. He remained, however, with the British troops for 10 or 11 months, during which he might easily have accomplished his escape; and it must be remembered that, in the eye of the law, nothing will ex cuse the act of joining an enemy but the fear of immediate deathnot the fear of any inferior personal injury, nor the apprehension of any outrage upon property. But, had the defendant enlisted merely from the fear of famishing, and with a sincere intention to make his escape, the fear could not surely always continue, nor could his intention remain unexecuted for so long a period.* Verdict-Not guilty.

2 Accord: U. S. v. Jones, 3 Wash. C. C. (U. S.) 209, Fed. Cas. No. 15,494 (1813); In re Fair (C. C.) 100 Fed. 149 (1900).

See, for command of master, Sanders v. State (Tex. Cr. App.) 26 S. W. 62 (1894); parent, People v. Richmond, 29 Cal. 414 (1866). Compare Reg. v. Boober, 4 Cox, C. C. 272 (1850).

In State v. Ash, 33 Or. 86, 54 Pac. 184 (1898), it was held that a police officer, who agreed for a reward to protect the keeper of a bawdy house from prosecution, could not escape responsibility therefor by proof that in so doing he acted under the orders of his superior officer, to whom he gave the reward.

Part of this case is omitted.

Accord: U. S. v. Vigol, 2 Dall. 346, Fed. Cas. No. 16,621, 1 L. Ed. 409 (1795); mutiny, U. S. v. Haskell, 4 Wash. C. C. 402, Fed. Cas. No. 15,321 (1823).

MIK.CB.L.-5