Page:Federal Reporter, 1st Series, Volume 9.djvu/707

 692 FEDEEAL REPORTER. �and there was no reasonable cause for the delay in effacing and oblit- erating the stamp, then you ought to return a verdict of guilty, �The counsel for the defendant insisted that even if the jury should be fully satisfied that there was a violation of law, the defendant is not guilty, as the ofifenoe was committed by hia wife in his absence, and without his knowledge and consent. As a general rule, the hus- band ia not criminally liable for offenees committed by the wife in his absence, and without his consent or procurement. If he is pres- ent with his wife, and participates in the crime, he may be indicted. In most cases of felony, but not in misdemeanors, where the hus- band is actually or constructively present at the time of the commis- sion of a crime, the wife may be excused, although she participated, on the ground of the actual or presumed command and coercion of the husband compelling her to the commission of the crime. But this is only a presumption of law, and may be rebutted by evidence showing that she was not acting under compulsion, but was a voluntary and principal actor, �The rules of law aa to the joint and separate liability of a husband and wife in the commission of crime do not govern this case, and they are onlyreferred to as they were strongly insisted on in the argument of counsel. This is not a crime of commission, but the ofience con- sists in a failure to perform a legal duty. The emptying of the cask was not criminal, — the failure to efface the stamp is the gist of the offence. �The defendant had undertaken a public business under a license from the government, and his wife was his agent in earrying on this business^ and she omitted to perform a duty imposed by law upon persons engaged in such licensed employment. �As a general rule, a criminal act of a servant or agent does not snb- ject the master or employer to any criminal responsibility, unless he directed or co-operated in such act, or the employment necessarily resulted in such unlawful act. It is, however, well settled that where a master, owing a certain duty to the public, entrusts its performance to a servant, he is responsible criminally for the failure of hia servant to discharge that duty, if the non-performance of such duty is a crime. �The wife in this case was the agent of her husband, and he is criminally responsible, if, without reasonable justification and excuse, she failed to perform the duty imposed upon him by the law. �There is some direct conflict between the testimony of the witnesses ��� �