Commonwealth v. Hill

Field, J.

In offences like that charged in this indictment, there is a presumption of law that acts done by the wife in the immediate presence of her husband are done by her under coercion from him. This was originally a presumption in favor of the wife, but it is now also considered that there is a presumption against the husband that acts done by the wife in his immediate presence are done by his command or authority. In each case, it is a disputable presumption, and may be rebutted or contradicted by evidence, and this presumption has perhaps lost something of its force in modern times in consequence of *308 the rights given to married women by statute, and the diminished power of control which by law and usage husbands now have over the person and property of their wives. Still, it has recently been distinctly declared that a husband has the rightful power to prevent his wife from using, for the illegal sale of intoxicating liquors, a house owned by her as her separate prop-: erty, and occupied by both as the home of the family. This must be equally true when the wife uses the house as a resort for prostitution. Commonwealth v. Carroll, 124 Mass. 30 .

If the husband took no part in keeping the tenement for the purposes charged in the indictment, we think that the question of fact was whether he consented to his wife’s keeping it for these purposes. If she kept it of her own free will, and without his consent and against his will, he could not be convicted. Whether he used all reasonable and practicable means to prevent her from keeping the tenement for these illegal purposes was relevant only upon the question of his consent or want of consent; and if in fact she acted of her own free will, and without his consent and against his will, he could not be convicted, although he had not used all reasonable and practicable means to control her conduct.

We are aware that, in some of the decisions, expressions have been used which indicate that it is a substantive part of the law, that, to excuse himself, the husband must show that he has used all reasonable and practicable means to restrain his wife; hut, taking all the decisions together, we think it appears that his whole conduct, including what he did and said, and as well what he could reasonably have done and did not do, is admitted as evidence only for the purpose of proving or disproving his consent in fact to the acts done by his wife. Commonwealth v. Putnam, 4 Gray, 16 . Commonwealth v. Wood, 97 Mass. 225 . Commonwealth v. Welch, 97 Mass. 593 . Commonwealth v. Tryon, 99 Mass. 442 . Commonwealth v. Cheney, 114 Mass. 281 . Commonwealth v. Barry, 115 Mass. 146 . Commonwealth v. Kennedy, 119 Mass. 211 . Commonwealth v. Carroll, ubi supra. Commonwealth v. Pratt, 126 Mass. 462 .

If, then, the tenement was the separate property of. the wife, this fact and the rights generally which belonged to the wife as owner of the tenement, and the knowledge or belief of the *309 husband, and the claim of the wife in reference to .these rights, so far as there was evidence that the conduct of the husband might have been influenced thereby, were competent evidence for the jury upon the question of his consent.

The defendant’s counsel had the right to argue to the jury all questions of law and fact involved in the case, subject to the ultimate decision of the presiding justice upon all questions of law. Commonwealth v. Porter, 10 Met. 263 . Those provisions of the statutes which directly relate to the offence charged, counsel have always been permitted to read to the jury. Whether counsel should be permitted to read other provisions of the statutes to the jury, we think, was in the discretion of the presiding justice. The whole-law which defined the nature and extent of the right which the husband bad to control the conduct of his wife was not contained in the statutes, and the general rule is that it is within the discretion of the presiding justice whether counsel shall read to the jury statutory or common law from books, or shall state it orally, subject to the correction of the court. Commonwealth v. Austin, 7 Gray, 51 .

The first two instructions requested apparently involved some questions of law which were not raised by the evidence, and upon which the presiding justice was not required to rule; and the instructions given were correct, unless the last clause be considered as substantially modifying the instructions that the defendant would be responsible if the use of the house by his wife was with his knowledge and consent, and would not be responsible if her use of it was without his knowledge or consent. We are not convinced that this clause was intended to modify the substance of the instruction previously given.

The time covered by the indictment was from and including January 1, 1886, to the day of finding the indictment, which was June 10, 1886. It appears that “ the defendant offered evidence to show that, from time to time during five years prior to the finding of the indictment, he had ordered, directed, persuaded, and used all reasonable and practicable means in his power to prevent his wife from doing any of the acts charged, and that his wife told him the property was hers, and she would do as she pleased. The judge excluded any evidence on this point at any time prior to January 1.”

*310 The defendant was necessarily somewhat restricted in his defence, as he could not be permitted to testify to private conversations with his wife. The offence charged was a continuing one, and it might well be that he could produce but slight evidence that, during the time covered by the indictment, he had endeavored to prevent his wife from using the tenement for the illegal purposes charged; and yet he might have had ample proof that, within a reasonable time before this, he had in vain done, in good faith, all that he reasonably could to prevent her from using it as she did; and from this evidence the jury might have found that he continued to be of the same state of mind during the time covered by the indictment as before, and that his wife knew this, and continued to keep the premises in the same illegal manner, against his will.

When the question is of the state of mind of a person at or during a particular time, which can only be shown by acts or speech, evidence of what he said or did for a reasonable time before, if it tends to show a permanent- or settled state of mind on the subject, has always been admitted. How far back a party shall be permitted to go, is largely in the discretion of the presiding justice; the only general rule is, that the evidence should be admitted, if, under all the facts proved, there can be a reasonable inference that the same state of mind continued to exist up to and during the particular time which is the subject of inquiry. Similar considerations apply to the knowledge or belief of the wife in regard to her husband’s assent to or dissent from her course of conduct.

We think that the presiding justice erred in limiting the defendant to the time covered by the indictment; and, for this reason, the exceptions are sustained. Potter v. Baldwin, 133 Mass. 427 . Exceptions sustained.