Commonwealth v. Moore, 162 Mass. 441

162 Mass. 441 | Mass. | 1894

Lathbop, J.

This case was tried as if the offence charged were an ordinary crime committed by the defendant in the presence of her husband. Treating it as such, we have no doubt that the rulings given, and the refusal to rule as requested, were right. It is a general rule, that, where a criminal act is done by a wife in the presence of her husband, or in proximity to him, a presumption in her favor is raised that she is acting under his coercion. This presumption is, however, not conclusive, and may be rebutted by testimony or the attendant circumstances, and it is for the jury to say whether or not she acted under coercion or of her own free will. Commonwealth v. Daley, 148 Mass. 11, and cases cited.

In the case at bar it cannot be said that there was no evidence to rebut the presumption. Under the Pub. Sts. c. 169, § 18, cl. 2, the xvife could not be compelled to be a xvitness on the trial of the complaint against her husband. The language of the statute is, “Neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint, or other criminal proceeding, against the other.” When, therefore, the wife took the stand, at the call of the counsel for her husband, she could have invoked the protection of the court, if she did not wish to testify. The jury had the right to determine whether her testimony was given voluntarily or under coercion.

We are inclined to the opinion, moreover, that where a wife testifies in behalf of her husband, under the Pub. Sts. c. 169, § 18, the rule that there is a presumption of coercion does not apply, and that the first two rulings requested and given were too favorable to the defendant. The statute, by saying that a wife shall not be compelled to testify, apparently assumes that, if she does testify, she is a voluntary witness. • The testimony is in open court, and is given under the solemnity of an oath. It is to be considered by the jury, but very little weight ought to be given to it if there is a presumption that it is given under coercion of her husband. The better rule would seem to be, that where a wife is a witness under the statute above cited, and commits perjury, she is not exempt from the penalties imposed for that offence.

While we have found no case bearing directly upon this point, the cases decided under the next clause of the same section of the statute, which allows a person charged with an offence or crime to testify in his own behalf at his trial, are somewhat analogous. Such a person cannot be compelled to testify, but if he offers himself as a witness, and testifies, he is treated as any other witness, and is obliged to testify to any matter pertinent to the issue in the case. Commonwealth v. Mullen, 97 Mass. 545, 546. Commonwealth v. Bonner, 97 Mass. 587, 589. Commonwealth v. Morgan, 107 Mass. 199, 205. Commonwealth v. Nichols, 114 Mass. 285, 287. Commonwealth v. Tolliver, 119 Mass. 312. Commonwealth v. Sullivan, 150 Mass. 315, 317. And it has been held in other jurisdictions that, if a person so testifying commits perjury, he may be indicted therefor. Mackin v. People, 115 Ill. 312. Mattingly v. State, 8 Tex. App. 345. State v. Maxwell, 28 La. An. 361.

In either view of the case, the order must be,

Exceptions overruled.