Supreme Court. New York General Term,

May, 1864.

Leonard, *Clerke*and Welles, Justices.

#### *Rosanna Quinlan,*plaintiff in error, *v.*The People, defendants in error.

The prisoner, together with her husband, was indicted and tried for robbery. The judge charged that if the husband was present at the time the intent to commit the offense was formed, the law presumed she acted under his compulsion; but if she formed the intent to commit the crime and actually commenced its consummation in his absence and without his knowledge, the fact that he afterwards arrived and aided in completing it did not create the presumption that she acted under his compulsion, and that whether the wife, acted under the compulsion of her husband was a question for the jury. On writ of error brought by the prisoner, *held,*that the charge was not erroneous.

In an indictment for robbery in the first degree, the prisoner was charged with taking “ bank bills of banks, to the jurors unknown, and of a number and denomination to the jurors aforesaid unknown, of the value of forty-nine dollars, &c., &c.,” and the allegation was held to be sufficient.

Form of an indictment for robbery in the first degree.

The prisoner and others pleaded not guilty to the following indictment for robbery in the first degree: *2*City and County of New*York, *ss:*

The jurors of the People of the State of New York, in in and for the body of the city and county of New York, upon their oath present:

That Rosanna Quinlan, late of the First ward of the city of New York, in . the county of New York aforesaid, James Quinlan, Margaret E. M. Smith,, and Catharine Kinsley, late of the same place, on the fourteenth day of October, in the year of our Lord, one thousand eight hundred and sixty-two, at the ward, city and county aforesaid, with force and arms, in and upon one Maria Brannigan, in the peace of the said people then and there being, feloniously did make an assault, and bank bills, of banks to the jurors aforesaid unknown, and of a number and denomination to the jurors aforesaid unknown, of the value of forty-nine dollars, of the goods, chattels, and personal property of the said Maria Brannigan, from the person oí said Maria Brannigan, and against the will and by violence to the person of said Maria Brannigan, then and there violently and feloniously did ■ rob, steal, take and carry away, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity.

A. OAKEY HALL, *District Attorney.*

The issue came on for trial on the' 19th day of November, 1862, at a Court of General Sessions of the Peace, held in and for the city and county of New York, before John H. McCunn, city judge of said city, and a jury.

And on the trial it was proved that two of the prisoners, to wit, Rosanna Quinlan and James Quinlan, are and were, at the time when both were indicted, married to each other; that the counsel for Rosanna Quinlan and James Quinlan asked the court to charge the jury that upon the proof of the marriage, and that the parties were man and wife, both of them could not be convicted.

*3The court refused to charge the jury in that way, but charged that, if the husband was present at the time the intent to commit the offense was formed, the law presumes she acted under his compulsion; but," if they find that she formed the intent to commit the crime, and actually commenced its consummation in his absence and without .his knowledge, the fact that he afterwards arrived and aided in completing it, did not create the presumption that . she acted under his compulsion; that whether the wife, in the present case, acted under the compulsion of her husband, was a question for the jury to determine from all the evidence in the case. To such ruling, and to the refusal of the court to charge the first proposition, the counsel for the prisoner excepted.

Eosanna Quinlan was found guilty by the jury of grand larceny, and was sentenced by the court to two years imprisonment in the State prison. Her counsel then brought the case before this court by writ of error.

*S. H. Stuart,*for the plaintiff in error.

*A. Oakey Hall*(District Attorney), for the people.

I. The allegation of stealing “bank bills, of banks to the jurors aforesaid unknown, and of a . number and denomination to the jurors aforesaid unknown, of the value of forty-nine dollars,” is a proper one. (Per Denio, Ch. J., *People*v. Haskins, 16 N. *Y.,*347.)

II. The city judge correctly left to the jury the doctrine of legal coercion or non-coercion, as applied to the particlar participation of the husband and wife in the criminal transaction under trial.

1. ■ Certainly the request of counsel was wrong, because it only approached the legal doctrine, and comprised only some precedent elements.

2. The court charged in words as follows: “if the hus*4band was present at the time the intent to commit the offense was formed, the law presumes she acted under his compulsion; but, if they find that she formed the intent to commit the crime, and actually commenced its consummation in his absence and without his knowledge, the fact that he afterwards arrived and aided in completing it, did not create the presumption that she acted under his compulsion; that whether the wife, in the present case, acted under the compulsion of her husband, was a question for the jury to determine from all the evidence in the case.”

3. This charge, in effect, stated the law in the following language of Wharton: “ but if she commit a crime of her own voluntary act, even in company with or by coercion of her husband, she is punishable as much as if she were sole.” (1 *Whar. Cr. L.,*§ 71.)

4. The ancient law of coercion, as found in Hawkins and Hale, was absurd. For example: the husband might, in the most stringent manner, coerce her to commit murder. Yet being *murder,*and not a misdemeanor, her act was not excused. What was it that should excuse ? Clearly the coercion, however produced. How much more sensible the doctrine: if the *circumstances*convinced a jury that the wife did not commit crime voluntarily, but acted out of fear from the husband’s presence, and from his present ability to do her harm, or out of a fear for future vengeance on his part, etc., etc., then the jury might acquit; but if they thought the contrary, then they might convict. In short, let coercion be proven or disproven, like any other independent fact illustrating intent or confederacy of purpose. The very principle, as just stated, was acknowledged in the instance cited by Vaughan, J., in *Queen*v. *Cruise*(1838, 2 *Moody,*57), of a man who was a cripple and bed-ridden, whose wife was convicted of a crime committed in his presence. They were man and wife; he was always present during the commission of the crime, although bed-ridden; he may have coerced her to the *5crime by a strong will, or the possession of a pistol, or by many other imaginable conditions. But in effect, the *circumstances*of. the case showed that she was not coerced. Again, could not a husband command his wife to commit crime, and might not his hold upon her weak love or fears be so great, as shown by circumstances, that even, although he was absent when the *corpus delicti*was created, or was consummated, she was actually coerced, and therefore ought to be acquitted? Is not the safer rulé to leave it to the jury to say, in each particular case, “coercion 01 non-coercion? ”

5. The later law indicates this: In *Queen*v. *Cruise, supra,*Lord- Abinger says, “ This case must have been left to the jury, and they have convicted the parties of an offense, of which they might be jointly guilty.” In *Queen*v. *Borber, wife and son*(4 *Cox Cr. Cases, p.*272, at Nisi Prius), the lamented Talfourd said to the jury: “ This is entirely a question for you. The man and woman are living together, and that is evidence from which you are at liberty to infer that they are man and wife. If you think so, and also believe that the man was in possession of these moulds, then you ought to acquit the woman, as she cannot in law be said to have any possession separate from her husband,” etc., etc.

6. May not circumstances exist wherein the husband is the one under coercion? Suppose Macbeth and Lady Macbeth to have been amenable to our law; what jury would have hesitated to convict *her?*

7. But *cessante ratione lex ipsa cessat;*whether good or bad in effect, the ancient law has lost its reason in these times.

By the ancient law the husband had the benefit of clergy if he could read, but in no case could women have that benefit; it would, therefore, have been an odious proceeding to have executed the wife, and to have dismissed the husband with a slight punishment. To avoid this, it was *6thought better that she should, in all cases, be acquitted; but as this reason did .not apply to misdemeanors, coercion did not apply to them! This appears from note to 2 *Lewin’s Crown Reports, p.*232 (1838 . '

8. Might not the rule in modern days be stated thus: The coercion of the wife by the husband, when both are present at an act of crime, is presumed until the contrary appear. But the jury shall decide upon the facts whether the wife is excusable or is a guilty participant. (Deduced from 1 *Whar.,*§ 75, and cases *supra.)*

9. In short, did she sin as a wife or as a woman? If in her capacity as an obedient wife, let the 'husband answer. If as a woman, *she*must answer with or withouther husband.

Such, in effect, was the law applied by the city judge, to the case at bar; in which case there was evidence that the crime was begun by her, and that the husband came into the crime afterwards.

*By the Court,*Leonard, J.

1st. The case as presented is so meagre that it is impossible to determine whether or not the evidence justified the request made by the prisoner’s counsel, in respect to the charge of the judge.

On the hypothesis of the judge, his charge was correct. (1 *Wharton’s Crim. Law,*§§ 71, 75.) But one fact proven in the case is presented, viz: that Rosanna and James Quinlan, two of the prisoners at the bar, are and were, at the time when both *were indicted,*married t'o each other. Whether they were married at the time the offence was committed, would have been more material. But, if we assume, that they were then husband and wife, it is not stated whether the husband was present when the offense" was committed.

If both were together, and nothing appeared to the contrary, the presumption would be that the wife acted under coercion, and she would then be entitled to an acquittal. (1 *Wharton’s Crim. Law,*§ 73.)

*7We cannot assume the facts to be in favor of the prisoner after conviction. If she wanted any benefit of her exception to the refusal to charge as requested, it was incumbent on the prisoner to prepare a bill of exceptions containing the facts, if any existed, so as to make it apparent that the law applicable to her case was correctly stated in the request.

2d. The objection to the indictment is not well taken. The jurors may omit a matter of description which they cannot ascertain, when the substance of the offense is set out. *(Haskins*v. *The People,*16 *N. Y. R,*347.) Some part of the money stolen in the case of *Haskins*v. *The People,*was described in the same manner as in the case at bar, and it was held good in the. opinion of Judge Denio.

The judgment of the General Sessions must be affirmed.