cion, besides that proceeding from presence, the wife in these exceptional cases is required to show for her excuse, the books do not clearly inform us. It will therefore devolve on the judges, as often as the question arises, to lay down the rule for the particular case, with its special circumstances, according to a sound discretion, in the light of the fact, that, ordinarily, presence alone is sufficient. § 280. Fourthly. Whenever the wife, being in the presence of her husband, is presumed to act under his coercion, the presumption is only a prima facie one, to be rebutted by evidence.1 If the testimony merely shows the two to have acted together in a crime, she, though the more busy of the two, is to be acquitted.2 But if it appears also that he was a cripple confined to his bed, and so was incapable of coerc ing her; or that in fact she was not only the active party, but acting from her own free and uncontrolled will, — then, although he was present, she is to be convicted. § 281. Fifthly. From the foregoing propositions it follows, that, whatever the offence may be, the wife, like any other person, may be proceeded against jointly with her husband, in the same indictment; and she can rely on the coercion only the court held, that the wife who sells intoxicating liquor without license, in her husband's absence, is not presumed to act under his coercion. And see, as to this last point, Rex v. Crofts, 7 Mod. 397, 2 Stra. 1120. 11 Russ. Crimes, Grea. Ed. 22; Rex v. Price, 8 Car. & P. 19; Rex v. Stapleton, 1 Crawf. & Dix C. C. 163; The State v. Parkerson, 1 Strob. 169; Roscoe Crim. Ev. 955; Rex v. Hughes, 2 Lewin, 229; Wagener v. Bill, 19 Barb. 321. 2 Rex v. Price, 8 Car. & P. 19; Rex v. Knight, 1 Car. & P. 116; Commonwealth v. Trimmer, 1 Mass. 476; Anonymous, 2 East P. C. 559; Rex v. Tolfree, 1 Moody, 243; Reg. v. Matthews, 1 Den. C. C. 596, Temp. & M. 337; Rex v. Archer, 1 Moody, 143. 3 Reg. v. Pollard, 1 Russ. Crimes, Grea. Ed. 22, cited in Reg. v. Cruse, 2 Moody, 53. Uhl v. Commonwealth, 6 Grat. 706; Rex v. Dicks, 1 Russ. Crimes, Grea. Ed. 19. See note to Rex v. Knight, 1 Car. & P. 116. The indictment when the proofs are adduced at the trial. Of course § 282. Sixthly. The peculiar relation legally subsisting between husband and wife makes it impossible for her to commit some particular offences. For example, she cannot, in England, be indicted jointly with her husband for exercising a trade, not being qualified; because the exercise of it is his in law. If she is qualified, the qualification passes to him, and the exercise is still his. So if a boy is bound an apprentice to the husband, and the wife, as well as husband, wilfully neglects to give the apprentice sufficient food, in consequence of which he dies, he only can be convicted of manslaughter; because, as we have seen, there must be a legal duty in these cases to provide the food; and this duty the law imposes on the husband only, not at all on the wife. Perhaps circumstances may exist in which she will be liable on some other principle; for example, if the husband should put into his wife's care for a young person dependent on him, food, and she should cause the 'young person's death by starvation, neglecting to administer the food, she would be plainly liable. So, as a wife has no legal right to separate herself from her husband, she can never be made an accessory after the fact to any felony he may commit, through harboring and The State v. Nelson, 29 Maine, 329; Rex v. Stapleton, 1 Crawf. & Dix C. C. 163; Rex v. Thomas, Cas. temp. Hardw. 264; Rex v. Chedwick, 1 Keble, 585, pl. 50; The State v. Bentz, 11 Misso. 27; Commonwealth v. Murphy, 2 Gray, 510; Rex v. Morris, 2 Leach, 4th ed. 1096; The State v. Montgomery, Cheves, 120. 2 The State v. Nelson, 29 Maine, 329. 3 Commonwealth v. Lewis, 1 Met. 151; Rex v. Hanison, Say. 229; Rex v. Crofts, 7 Mod. 397. Reg. v. Atkinson, 2 Ld. Raym. 1248. 5 Ante, § 235. Rex v. Squire, 1 Russ. Crimes, Grea. Ed. 19. 'See Rex v. Saunders, 7 Car. & P. 277. receiving him with knowledge of the felony. The same is. the Scotch law,2 where the doctrine of marital coercion does not prevail. Likewise, as the wife must follow and dwell with her husband, her estate is not subject to forfeiture under an absentee act. Also there may be cases in which, though the wife is liable, the husband must be proceeded against jointly with her. "The principle," a learned judge once observed, "is said to be general, that, for fines and forfeitures incurred by the act of the wife for which the husband is liable, either separately or conjointly with his wife, he must be made a party to the judgment, and equally subject to arrest and imprisonment to enforce the payment."5 Yet it has been held, that a feme covert may be convicted alone, under a penal statute, for selling gin; because though she cannot pay damages, she is "as capable of forbearing the crime as a man." And Lee, C. J., observed: "I do not know of any case, where there is a prosecution, against a feme covert, for a crime upon the breach of an act for which there is a pecuniary penalty inflicted, and for default of payment corporal punishment, that the husband is liable." 6 11 Russ. Crimes, Grea. Ed. 24; Reg. v. Manning, 2 Car. & K. 887, 903. 2 1 Alison Crim. Law, 669. 9 Ante, § 276. Martin v. Commonwealth, 1 Mass. 347. Saffold, J., in Rather v. The State, 1 Port. 132, 137; 1 Hawk. P. C. . Curw. Ed. p. 5, § 13. See, however, The State v. Montgomery, Cheves, 120. 510. Rex v. Crofts, 7 Mod. 397. See also Commonwealth v. Murphy, 2 Gray, [322 ] CHAPTER XXI. INFANCY. § 283. ALL persons under the age of legal capacity, fixed at the common law at twenty-one years in both males and females, are termed infants. And the law fully recognizes, and to a considerable extent enforces, the duty of filial obedience; yet it has not established so close and intimate a relation between parent and child, as between husband and wife. Infants, who have arrived at sufficient maturity in years and understanding, are capable of committing crimes: they cannot plead in justification the constraint of a parent, as married women can that of the husband.1 § 284. The period of life at which a capacity for crime commences is not susceptible of being established by an exact rule, which shall operate justly in every possible case.. But, on the whole, justice seems best promoted by the exist, ence of some rule. Therefore, at the common law, a child under seven years of age is conclusively presumed incapable of committing any crime of any sort.2 Between seven and fourteen, the law also deems the child incapable; but only prima facie so; and evidence may be received to show a criminal capacity.3 The question is, whether there was a 1 Ante, § 275. 2 Broom Leg. Max. 2d ed. 232; 4 Bl. Com. 23; 1 Russ. Crimes, Grea. Ed. 1. Such a child cannot commit a nuisance, even on its own land. People v. Townsend, 3 Hill, N. Y. 479; nor be a vagrant, Rex v. Inhabitants of King's Langley, 1 Stra. 631. The State v. Goin, 9 Humph. 175; Rex v. Owen, 4 Car. & P. 236; Rex. v. Groombridge, 7 Car. & P. 582. guilty knowledge of wrong doing.1 Over fourteen, infants, like all other persons, are prima facie capable; and he who would set up their incapacity must prove it. But, as we have seen in respect to married women, there may be particular offences, which, in consequence of the peculiar legal relation of infancy, no minor can commit,,whatever be his general capacity for crime. But the number of these offences is small. A minor, for instance, may be the subject of an indictment for obtaining goods by false pretences. So he may be guilty of treason, and thereby forfeit his estate.5 There are some other distinctions mentioned in the old books, probably not to be received by the courts of the present day. § 285. Concerning infants between seven and fourteen, it is said: "The evidence of that malice which is to supply age ought to be strong and clear, beyond all doubt and contradiction." And Lord Hale observes, that "the infant is not to be convict upon his confession." 8 Yet evidently the presumption of incapacity must decrease with the increase of years; and so a vast difference should be made in considering the cases of two children, one of whom is a day short of fourteen, and the other a day over seven years old. Therefore on the trial for arson of a girl between twelve and thirteen, shrewd, sensible, and artful, the court deemned, that, if she had sufficient mental capacity legally to commit the crime, she had sufficient to make confession of it. The cases are numerous, in the older books, in which children of very immature 1 Rex v. Owen, 4 Car. & P. 236; 4 Bl. Com. 23; Broom Leg. Max. 2d ed. 233. And see post, § 285. 2 5 1 Russ. Crimes, Grea. Ed. 2; The State v. Handy, 4 Harring. Del. 566. * Ante, § 282. People v. Kendall, 25 Wend. 399. Boyd v. Banta, Coxe, 266. See 1 Russ. Crimes, Grea. Ed. 1, 2; 4 Bl. Com. 23. 74 Bl. Com. 24. And see ante, § 284. 8 1 Hale P. C. 27. • The State v. Bostick, 4 Harring. Del. 563; s. p., 4 Bl. Com. 24. |