Commonwealth v. Wood

Chapman, J.

The defendant contends that he is not liable because the house was owned by his wife as her separate property, and the business of keeping a house of ill-fame therein, which was resorted to for prostitution and lewdness, was carried on by her, and she took the profits thereof, and he did not participate in them. Whether he is liable in such a case must depend upon the relations which he sustains to the household, while he lives with his wife as her husband.

The doctrine of the common law is that by marriage the husband and wife become one person in law; that she is under his protection, influence, power and authority, and that he is the head of the household. This condition of the wife is designated by the expressive term coverture. One effect of it is, as a general rule, though subject to many exceptions, to excuse her from punishment for many crimes committed by her in presence of her husband, on the ground that she acted under his compulsion. He alone is held responsible for such crimes. 1 Bl. Com. 442, st seq. 1 Russell on Crimes, 18. Commonwealth v. Neal, 10 Mass. 152 . Commonwealth v. Lewis, 1 Met. 151 . Commonwealth v. Coughlin, 14 Gray, 389 . Commonwealth v. Hurley, ib 411. How far he may exercise force in restraining her is not precisely seifled. But there can be no doubt that he may exer *229 cise as much power as may be reasonably necessary to prevent her as well as other inmates of the house from making it a brothel. It is said in Dalton’s Justice that he is liable if she keep an ale-house without license against his will.

But it is contended that the recent legislation of this Commonwealth has made married women so far independent of theii husbands as to release the defendant, in such a case as the present, from all responsibility for the conduct of his wife. It is true that the house they lived in appears to have been owned by her to her sole and separate use, free from the control of her husband. But ever since the law of equitable trusts existed, married women have been able to hold property thus independent of the husband’s control; and the fact that the family lived in a house thus owned has never been regarded as affecting the rights and power of the husband as head of the family. It is also true that under our statute she may carry on a separate trade on her own account. But.it has not been decided how far this affects the husband’s legal right to control her, nor is it necessary to decide it in this case. These provisions of the statute relate to legitimate business, and not to the keeping of brothels. They do not take away his power to regulate his household so far as to prevent his wife from committing this offence, or relieve him from responsibility if it is committed.

The court properly refused to instruct the jury that it was necessary to prove that the defendant kept the house for lucre and gain. It is not necessary to allege it ; Commonwealth v Ashley, 2 Gray, 356 ; and of course it is not necessary ti prove it. Exceptions overruled.