Page:Federal Reporter, 1st Series, Volume 5.djvu/295

 UNITED 8TATEB V. DE QUILFBLDT. 283 �the wife of the man with whom she is jointly indicted, no evi- dence is necessary to show that she is the wife. 1 Eu^s. Cr. 24. The cases cited, however, are ail cases where they were indicted jointly, and net precisely like this. Bex v. Hassall, 2 C. & P. 434; S. C. 12 E. G. L. 660; Reg.v. Woodtvard, 8 <J. & P. 561; S. C. 34 E. C. L. 891; Rex-v. Atkinson, cited 1 Euss. Cr. L. supra; Reg. v. McGinnia, 11 Cox, 391, cited 3 Jac. Fish. Dig. 3114; Bex v. Knigkt, 1 C. & P. 116; S. C. 11 E. C. L. 335, �It su£&ciently appears, however, from these anthorities, that, although it may be proper that a woman indicted as a single woman should, if she relies on her coverture, plead in abatement the wrong addition, the failure to so plead it does not preclude her from taking advantage of the defence under the general issue, and she may therefore give evidence of the fact of marriage, and the other facts necessary to make ont marital coercion. It was, therefore, error to exclude the evi- dence offered in this case. �I am quite satisfied, however, from the occurrences at the trial, that this is a simulated defence ; yet I cannot say that, upon full investigation of the facts, the jury would bave so found, and it was certainly a question for the jury to try, and not for the court to now determine upon a motion for a new trial. The defendant, on the proof, was clearly guilty. I am convinced, from her refusai to make affidavit of her marriage, that she was not the wife in fact of her partner in crime ; and this conviction bas inclined me to accede to the suggestion of the district attorney, and overrule this motion, notwithstanding any error committed in refusing proof in- tended only to sustain a false pretence of marriage, upon the ground that she bas not been injured by the ruling. Ànd it bas occurred to me to say to the defendant nov? that if she will make affidavit of her marriage in fact to De Quilfeldt.or by proof show the court that there would be sufficient testi- mony to raise a reasonable doubt in the minds of the jury of her guilt, taking into consideration the defence of coverture, that I would grant a new trial, exercising my discretion in ����