Commonwealth v. Murphy
68 Mass. 510
Mass.
1854
Check Treatment
Metcalf, J.

The defendant’s counsel has not denied that a wife may be indicted jointly with her husband. And the authorities on this point, (notwithstanding the case of Commonwealth v. Trimmer, 1 Mass. 476,) are too numerous and decisive to be withstood. Whether she can be convicted separately, oi jointly with him, is a question to be determined by direct evi*513dence or by legal presumptions concerning the freedom of her action or the coercion of her husband.

The exception taken to the instruction given to the jury in this case cannot be sustained. That instruction was, that if the defendant, in the absence of her husband, sold intoxicating liquor, under such circumstances as proved her to be a common seller, and if there was no evidence that she sold it by his command, or that, in selling it, she was under any coercion or influence of his, then she should be found guilty. The objection to this instruction assumes, as a legal proposition, that the defendant must be presumed to have acted under the coercion of her husband, unless the contrary be proved. But there is no such presumption, when the wife acts in the absence of her husband. Rex v. Morris, Russ. & Ry. 270. Rosc. Crim. Ev. (2d ed.) 879 1 Russ. on Crimes, (7th Amer. ed.) 20, 21.

The first cause assigned for the motion in arrest of judgment is, that, although the St. of 1852, c. 322, makes no provision for licensing common sellers, yet the indictment charges the defendant with being a common seller without being duly appointed and authorized therefor, and therefore does not properly negative an authority to sell as manufacturer, or an appointment to sell as town agent. The answer to this is, that neither does the St. of 1852, c. 322, nor did the previous statute, authorize the licensing of common sellers eo nomine. Under the previous statutes, no one could lawfully be what is termed a common seller, besides licensed taverners, retailers and victuallers. Under St. 1852, no one can lawfully be a common seller, besides appointed town agents and authorized manufacturers. This indictment, therefore, by alleging that the defendant was a common seller, without ,being duly appointed and authorized “ therefor,” sufficiently alleges that she had no authority, either as town agent or as manufacturer, to be a common seller.

The other cause assigned for the motion in arrest is, that as St. 1852, c. 322, § 12, provides that the penalty for being a common seller may be recovered by indictment, or by action of debt in the name of the city or town where the offence is committed the indictment is bad, because it does not aver that an action of *514debt, for the offence therein charged, has not been brought in the name of the town of Danvers. This objection to the indictment is groundless. It might, with equal reason, be objected that it is not averred in the indictment that the defendant had not been formerly convicted of the offence therein charged. The pendency of an action, in the name of the town, at the time when the indictment was returned, would, if properly pleaded, defeat the indictment. 2 Hawk. c. 26, § 63. Commonwealth v. Churchill, 5 Mass. 174. Commonwealth v. Howard, 13 Mass. 222. Beadleston v. Sprague, 6 Johns. 101. But the pendency of such action, or a recovery in it, is matter of defence, to be pleaded and proved, like a former conviction or acquittal. An indictment, rightly framed, never negatives matter of defence.

Exceptions overruled.