poison, or lying in wait, or in committing or attempting to commit any of the crimes enumerated in the statute, he could only be convicted of the higher offence by showing that it was a wilful, deliberate, and premeditated killing. A deliberate intent to take life is an essential element of that offence. The existence of such an intent must be shown as a fact. Implied malice is sufficient at common law to make the offence murder, and under our statute to make it murder in the second degree; but to constitute murder in the first degree, actual malice must be proved. Upon this question the state of the prisoner's mind is material. In behalf of the defence, insanity, intoxication, or any other fact which tends to prove that the prisoner was incapable of deliberation, was competent evidence for the jury to weigh. Intoxication is admissible in such cases, not as an excuse for crime, not in mitigation of punishment, but as tending to show that the less and not the greater offence was in fact committed. I cite a few only of the many authorities which sustain this position. Keenan v. The Commonwealth, 44 Pa. 55; Roberts v. The People, 19 Mich. 401; Pigman v. The State, 14 Ohio, 555; State v. Garvey, 11 Minn. 154; Haile v. The State, 11 Humph. 154; Shannahan v. The Commonwealth, 8 Bush (Ky.), 463; Ray's Med. Jur. 5th ed. 566.1

PEOPLE v. WALKER.

SUPREME COURT OF MICHIGAN. 1878.

[Reported 38 Michigan, 156.]

COOLEY, J.2 The defendant was convicted in the court below for the larceny of a sum of money from one Martin. All the evidence in the case tended to show that if the defendant took the money wrongfully, it was while he was under the influence of liquor, and some of it indicated that he was very drunk.

The circuit judge was requested to charge the jury, that, "even if the jury should believe that defendant was intoxicated to such an extent as to make him unconscious of what he was doing at the time of the commission of the alleged offence, it is no excuse for him, and they should not take it into consideration. A man who voluntarily puts himself in condition to have no control of his actions must be held to intend the consequences." This charge was given in reliance upon the general principle that drunkenness is no excuse for crime.

1 Acc. Hopt v. People, 104 U. S. 631; Cartwright v. State, 8 Lea, 376; Ferrell v. State, 43 Tex. 503; State v. Robinson, 20 W. Va. 713.

The same principle would seem to apply where it is desired to show that by reason of intoxication an intent to kill was absolutely lacking, and so to reduce the degree of a homicide to manslaughter. Reg. v. Doherty, 16 Cox C. C. 306. — ED.

Part of the opinion only is given.

While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. In larceny the crime does not consist in the wrongful taking of the property, for that might be a mere trespass; but it consists in the wrongful taking with felonious intent; and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed. This was fully explained by Mr. Justice Christiancy in Roberts v. People, 19 Mich. 401, and is familiar law. See also Nichols v. State, 8 Ohio St. 435; Regina v. Moore, 3 C. & K. 319.

The circuit court should be advised to set aside the verdict and grant a new trial.

The other justices concurred.1

SECTION III.

Coercion.

ANONYMOUS.

ASSIZES. 1352.

[Reported Liber Assisarum, 137 pl. 40.]

A WOMAN was arraigned for that she had feloniously stolen two shillings' worth of bread. She said that she did it by command of him who was at that time her husband. And the justices out of pity would not accept her confession, but took a jury; by which it was found that she did it by coercion of her husband, in spite of herself. Wherefore she was acquitted. And it was said that by command of a husband, without other coercion, there shall be no sort of felony, etc.2

1 See to the same effect the following cases: People v. Blake, 65 Cal. 275 (forgery); State v. Bell, 29 Ia. 316 (burglary); Roberts v. People, 19 Mich. 401 (assault with intent to kill); Pigman v. State, 14 Ohio, 555 (passing counterfeit money). — ED.

2 When a wife commits a crime in her husband's presence, the presumption is that she acted by his coercion; and if so, she is excused. Reg. v. Price, 8 C. & P. 19; Com. v. Eagan, 103 Mass. 71; State v. Williams, 65 N. C. 398. This presumption may, however, be rebutted by proof that the wife did not act by the husband's coercion. U. S. v. Terry, 42 F. R. 317; Seiler v. People, 77 N. Y. 411; Uhl v. Com., 6 Gratt. 706; Miller v. State, 25 Wis. 384. The land of a wife who left the country with her husband was held not liable to confiscation under the "Absentee Act" in Martin v. Com., 1 Mass. 387.- ED.

It was propounded to all the judges: If a man and his wife go both together to commit a burglary, and both of them break a house in the night, and enter and steal goods, what offence this was in the wife; and agreed by all, that it was no felony in the wife, for the wife being together with the husband in the act, the law supposeth the wife doth it by coercion of the husband. And so it is in all larcenies; but as to murder, if husband and wife both join in it, they are both equally guilty. Vid. 2 E. III.; F. Corone, 160; 27 Ass. pl. 40; F. Corone, 199; Poulton de Pace, 126, b; and the case of the Earl of Somerset and his lady, both equally found guilty of the murder of Sir Thomas Overbury, by poisoning him in the Tower of London [2 How. St. Tr. 951, 3 Co. Inst. 49].

M'GROWTHER'S CASE.

SURREY SPECIAL ASSIZES.1 1746.

[Reported Foster C. L. 13.]

In the case of Alexander M'Growther, there was full evidence touching his having been in the rebellion, and his acting as a lieutenant in a regiment in the rebel army called the Duke of Perth's regiment. The defence he relied on was that he was forced in.

And to that purpose he called several witnesses, who in general swore that on the 28th of August the person called Duke of Perth, and the Lord Strathallan, with about twenty Highlanders, came to the town where the prisoner lived; that on the same day three several summonses were sent out by the Duke, requiring his tenants to meet him, and to conduct him over a moor in the neighborhood, called Luiny Moor; that upon the third summons the prisoner, who is a tenant to the Duke, with about twelve of the tenants, appeared; that then the Duke proposed to them that they should take arms and follow him into the rebellion; that the prisoner and the rest refused to go; whereupon they were told that they should be forced, and cords were brought by the Duke's party in order to bind them; and that then the prisoner and ten more went off, surrounded by the Duke's party.

These witnesses swore that the Duke of Perth threatened to burn the

1 Coram Lee, C. J., Willes, C. J., Wright and Foster, JJ., Reynolds and Clive, BB. Reported also 18 How. St. Tr. 391. — ED.

houses and to drive off the cattle of such of his tenants as should refuse to follow him.

They all spake very extravagantly of the power lords in Scotland exercise over their tenants, and of the obedience (even to the joining in rebellion) which they expect from them.

Lord Chief Justice Lee, in summing up, observed to the jury that there is not, nor ever was, any tenure which obligeth tenants to follow their lords into rebellion.

And as to the matter of force, he said that the fear of having houses burnt or goods spoiled, supposing that to have been the case of the prisoner, is no excuse in the eye of the law for joining and marching with rebels.

The only force that doth excuse is a force upon the person, and present fear of death; and this force and fear must continue all the time the party remains with the rebels. It is incumbent on every man, who makes force his defence, to shew an actual force, and that he quitted the service as soon as he could; agreeably to the rule laid down in Oldcastle's Case, that they joined pro timore mortis, et recesserunt quam cito potuerunt.

He then observed that the only force the prisoner pretends to was on the 28th of August; and that he continued with the rebels and bore a commission in their army till the surrender of Carlisle, which was on or about the 30th of December.

The jury without going from the bar found him guilty. But he was not executed.

N. B. All the judges that were in town were present, and concurred in the points of law.

In this case the two prisoners, who were husband and wife, were charged with highway robbery with violence.

The facts as proved in evidence clearly disclosed the felony charged in the indictment, but as regards the female prisoner there was some evidence to show that in what she had done, and in the violence which she had used against the prosecutor, she was acting under the compulsion of her husband, and in fear of violence from him.

H. F. Dickens, for the prosecution.

G. L. Denman, for the defence, submitted, on the authority of Reg. v. Torpey, 12 Cox C. C. 45, that there was no case to go to the jury as against the wife. And upon the learned judge ruling that it was for the jury to find whether upon the facts the wife had acted under

the coercion of her husband or not, addressed the jury for the defence; and, while admitting that the male prisoner must be convicted, urged that the wife had really acted under the coercion of the husband.

The learned judge [STEPHEN, J.], in summing up, left the following questions to the jury: —

1. Were the prisoners individually guilty or not guilty? This question to be answered as if they were unmarried.

2. If both are found guilty, then as a matter of fact did the wife act under the compulsion of her husband?

The jury found both prisoners guilty, but also found that the wife had acted under the compulsion of the husband.

Upon this finding counsel for the defence claimed a verdict of not guilty in favor of the wife, quoting the case already cited, and also Reg. v. Woodward, 8 C. & P. 561.

After consideration the learned judge directed an acquittal to be entered for the wife, who was discharged.1

COMMONWEALTH v. DALEY.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1888.

[Reported 148 Massachusetts, 11.]

C. ALLEN, J. When a married woman is indicted for a crime, and it is contended in defence that she ought to be acquitted because she acted under the coercion of her husband, the question of fact to be determined is whether she really and in truth acted under such coercion, or whether she acted of her own free will and independently of any coercion or control by him. To aid in determining this question of fact, the law holds that there is a presumption of such coercion from his presence at the time of the commission of the crime; this presumption, however, is not conclusive, and it may be rebutted. And in order to raise this presumption it is also established that the husband's presence need not be at the very spot, or in the same room, but it is sufficient if he was near enough for her to be under his immediate control or influence.

No exact rule applicable to all cases can be laid down as to what degree of proximity will constitute such presence, because this may vary with the varying circumstances of particular cases. And where

1 See Rex v. Buncombe, 1 Cox C. C. 183; People v. Wright, 38 Mich. 744. "A wife may be indicted together with her husband, and condemned to the pillory with him for keeping a bawdy-house; for this is an offence as to the government of the house, in which the wife has a principal share; and also such an offence as may gener ally be presumed to be managed by the intrigues of her sex." 1 Hawk. P. C. ch. 1, 8. 12. See Reg. v. Williams, 10 Mod. 63; State v. Bentz, 11 Mo. 27. — Ed. 2 Part of the opinion only is given.