Fact - Coercing a Wife - Husbands and Wives as Witnesses husband is not criminally liable for the act A of his wife, except in cases where the crime has been committed by her at his instigation or command, or where she is in the position of his agent. Thus, an innocent husband who is a dairyman, and has a wife who sells adulterated milk without his knowledge or approval, can be convicted under the Sale of Food and Drugs Act.
A wife cannot conspire with her husband, nor be an accessory after the fact for a felony committed by him; nor can she be convicted of treason for receiving or assisting him knowing him to be a traitor. But though a husband cannot conspire with his wife, he may be found guilty of being an accessory after the fact to a felony committed by her. And both husband and wife can conspire with other persons.
When husband and wife are jointly charged with larceny, burglary, robbery with violence, felonious wounding, receiving stolen goods, uttering counterfeit coin or passing forged notes, if the crime was committed by the wife in the presence of her husband, the presumption is that she was acting under his coercion, and she is entitled to an acquittal.
But this rule does not apply to murder or treason, or an ordinary assault or false swearing, or to such offences as keeping a gaming house, etc. And if the prosecution can show that the wife was the instigator of the act, or the more active party, or that the husband was the weaker of the two, being a cripple, or bedridden, or feeble-minded, etc., the presumption of coercion is rebutted.
An accessory before the fact is he who, being absent at the time the offence was committed, procures, counsels, commands, or abets another to commit a felony.
An accessory after the fact is one who, knowing that a felony has been committed, helps or harbours the felon. But, as already mentioned, a wife under such circumstances may screen her husband. A wife is amenable as an accessory before the fact to a murder committed by her husband, but if the only part she took in the transaction was in harbouring and comforting her husband after the crime was committed, she is not liable as an accessory after the fact. The fact that the marriage was irregular, and is probably invalid, does not take the case out of the doctrine of coercion, and the woman will still be entitled to an acquittal.
There cannot be a criminal prosecution for a libel by a husband on his wife, nor can a husband prosecute his wife for a libel by her upon him.
Under certain circumstances only can either be convicted of stealing the goods of the other. Thus, though both are punishable criminally for stealing the goods of the other, it is only when such property has been wrongfully taken by either when leaving or deserting or about to leave the other. But no criminal proceedings can be taken in respect of property claimed by either when they are living together, nor while they are living apart, with regard to acts done by either while living together, except when coupled with desertion. But, bearing this in mind, every married woman has by statute in her own name against all persons, including her husband, the same remedies and redress by the. way of criminal proceedings for the protection and security of her own separate property as if it belonged to her as a single woman.
Formerly the wife or husband of a defendant could not give evidence for the prosecution or for the defence, except in cases of offences committed by the defendant against the person or liberty of the other party to the marriage, and in such cases the wife or husband of the defendant could be compelled to give evidence for the prosecution.
In a prosecution for bigamy the true wife or husband of the defendant cannot be called as a witness, but the false wife or husband can give evidence. But the common law rule has been greatly altered by modern legislation, and the wife or husband of every person charged with a criminal offence is a competent witness for the defence, but cannot, except in cases of desertion, assaults, offences under the Vagrancy, Married Women's Property, Criminal Law Amendment, Dangerous Performances, and Children's Acts, be called upon as a witness, either for the prosecution or for the defence, without the consent of the person charged.
Neither husband nor wife are compelled to disclose any communication made to either during the marriage. A husband or wife giving evidence under such circumstances may be cross-examined as to his or her character. But the failure of either to give evidence must not be commented on by the prosecution.