Page:Federal Reporter, 1st Series, Volume 5.djvu/290

 278 FEDEBAIi BEPOBTEB. �nearly connected with the act, as to shield her nnder the doc- trine of marital coercion, if she be in fact his wife. He was proved to have been engaged in counterfeiting at his house, where tbis defendant lived with him. The testimony was excluded, as will appear hereafter, on the ground that by pleading over the defendant had waived the defence of coverture. But the court sought to proteot her against the effect of the ruling by ofPering to allow her to withdraw a juror, enter a mistrial, and then to withdraw the plea of not guilty and plead the want of a proper addition, describing her as married or single, in abatement. Upon being informed that a plea in abatement must be veriiied by affidavit, her counsel, upon consultation with her, declined to take this course, and she was convicted. She now moves for a new trial for error committed by the court in excluding testimony tending to show that she was married to De Quilfeldt, and raising the presumption in her favor of coercion by her hus- band. �Before entering upon the consideration of the question whether the testimony was properly rejected, it may be proper to say that this defence of marital coercion as a protection to women engaged in the commission of crime is not a favored one, and, at least in modern times. has almost lost ail Bolid foundation for its existence. It has been abrogated by statute in some states, and might well be in ail. 1 Benn. & Heard, Lead. Orim. Cas. (2d. Ed.) 81, and notes; Steph. Dig. Cr. L. (8t. Louis Ed. 1878,) art. 30, p. 20, and note 2, p. 362. It is almost an absurdity in this day to pretend that husbands can or do coerce their wives into the commission of crimes, and, where coercion appears as a fact, the court or jury would always allow it to mitigate punishment, or it might well be a recommendation to executive clemency; but to hold it to be presumed as a fact, in ail cases where the husband is present, is the relie of a belief in the ignorance and pasillanimity of women which is not, and perhaps never was, well founded, and does them no credit. I have had serious doubts whether this common-law fiction has a place in the criminal juris- ����