By sec. 16. A wife doing any act with respect to any property of her husband which if done by the husband with respect to property of the wife would make the husband liable to criminal proceedings by the wife under this Act, shall in like manner be liable to criminal proceedings by her husband.'

Before the 31 & 32 Vict. c. 116 (which see, vol. 2, Larceny), a wife was not guilty of larceny if she stole money in her husband's custody, the joint property of him and others. (c)

Where the prisoner was an apprentice to the prosecutor, and the prosecutor's wife had continual custody of the key of the closet where her husband's plate was usually locked up, and she had pawned some articles of it in order to supply the prisoner with pocket-money, but the articles she pawned were not those which the prisoner was charged with stealing; and the prisoner confessed that he took the articles mentioned in the indictment from the closet, and a pawnbroker proved that he received them in pledge from the prisoner, but it did not appear by what means the prisoner had gained access to the closet from which they were taken; the Court held, that the prosecutor's wife, having the constant keeping of the key of the closet where the plate was usually locked up, and it appearing that the prisoner could not have taken it without her privity or consent, it may be presumed that he had received it from her, and therefore he ought to be acquitted. (d) But if the wife steal the goods of her husband, and deliver them to B., who knowing it carries them away, B. being the adulterer of the wife, this, according to a very good opinion, would be felony in B.; for in such case no consent of the husband can be presumed. (e)

Thus, where the prosecutor left his wife in the care of his house and property, and during his absence the prisoner, who had lodged for some time previously in the house, took a great many boxes, &c., from the house, and left them at a house to which he had gone a day or two before with the prosecutor's wife, passing her for his own, and where he had hired lodgings; and he soon afterwards brought her with him to the lodgings, where they lived together till he was apprehended, and the wife, who took a small basket with her, swore that there was none of the property but what she had herself taken, or given to the prisoner to take; and the jury found that the prisoner stole the property jointly with the wife; it was held that this was larceny in the prisoner; for though the wife consented, it must be considered that it was done invito domino. (f)

So where the prisoner, who lodged at the house of the prosecutor, went away with the prosecutor's wife to Birmingham, where they lived together as man and wife for more than a year; they took with them from the prosecutor's house a box belonging to the prisoner, containing the wife's wearing apparel and a coffee-pot and two candlesticks, the property of the prosecutor. The coffee-pot and candlesticks were used by them at Birmingham, and afterwards sold by the wife, and the prisoner there pledged some articles of wearing apparel, and applied the money to his own use. The jury were directed to

(c) R. v. Willis, R. & M. C. C. R. 375. Dalt. c. 157.

(d) Harrison's case, 1 Leach, 47. 2 East, P. C. 559.

(e) Dalton, cap. 104, pl. 268, 269 (new edit. c. 157, p. 504).

(f) R. v. Tolfree, R. & M. C. C. R. 242, overruling R. v. Clark, R. & M. 376 n. (a).

find the prisoner guilty, if they thought either that the prisoner, going away with the prosecutor's wife for the purpose of an adulterous intercourse, was engaged jointly with her in taking the goods, or that, not being a party to the original taking, the prisoner, after arriving at Birmingham, appropriated any part of the goods to his own use. The jury having found the prisoner guilty, on the ground that there was a joint taking by the prisoner and the wife, the judges were unanimously of opinion that the conviction was right. (g)

So, where the prosecutor and his wife were on bad terms, and she arranged with the prisoner to elope with him and live together as man and wife, and the prisoner desired her to bring all the money she could, and to get the money and boxes of clothes ready by a particular night, when he would come for them and take her away; and she put £17 into the boxes, which already contained her clothes, two watches, some silk handkerchiefs, and about £4, and sat up after her husband had gone to bed till the prisoner came, took him into the room where her husband was asleep, and he took the boxes away, and, if her husband had remained asleep, she would have gone off with the prisoner, but, as her husband awoke, she was obliged to stay. It did not appear that any adultery had been committed. The boxes were locked by the wife, and were found in that state in the possession of the prisoner, and were unlocked with keys produced by the wife. Coleridge, J., directed the jury that, if the prisoner took any of the husband's property, there then being an intention to commit adultery with the wife, he was guilty of larceny; and that, having told the wife to bring all the money that she could, it was for them to consider whether he did not intend to steal the property taken away, although he might not, at the time of the taking, know exactly of what that property consisted. (h)

Where the prisoner lodged at the prosecutor's house, and knew that he would have to go out very early in the morning, and engaged a porter to be near the house at seven o'clock with his cart; the prisoner and the wife of the prosecutor were then jointly engaged in the house in packing up the articles alleged to be stolen in boxes, and when so packed the prisoner brought the boxes out, and they were put in the cart and driven to the station, the prisoner, the wife, and her three children accompanying them, and all went by the train to Leeds. A fortnight afterwards the prisoner and the wife were found living together at Leeds, in a house which she had taken in her own name, and all the property taken was found there. The wife was called as a witness for the prisoner, and swore that they neither had committed adultery, nor gone away for that purpose. The jury were told that, if they were satisfied that the prisoner and the wife, when they took the property, went away for the purpose of having adulterous intercourse, and had afterwards effected that purpose, they ought to convict; but that if they believed the wife, that they did not go away with any such purpose, and had never committed adultery, they ought to acquit. The jury found the prisoner guilty of larceny, and the conviction was affirmed. (i)

(g) R. v. Thompson, 1 Den. C. C. R. M. C. 70. Where the prosecutor's wife, tak549. ing with her articles of her wearing apparel, (h) R. v. Tollett, C. & M. 112. eloped with the prisoner, the clothes were (i) R. v. Berry, Bell, C. C. 95; 28 L. J. found in a trunk belonging to the prisoner,

On an indictment for larceny it appeared that the prisoner was a servant of the prosecutor, and that he was seen to bring a box out of the house of his master on the 28th of July, and that on the night of that day the prisoner and the prosecutor's wife occupied the same bedroom at Bath, and that in that room a police constable found them together, and charged the prisoner with stealing spoons and a watch of the prosecutor. He said, 'I've not stolen anything; what I have taken away is with her consent' (nodding to the wife). She said, 'Yes; I told him to get a fly, and take the boxes.' The constable pointed out a box, and said, 'That is the prosecutor's.' She said, 'Yes, that is the only thing which I have got of his.' The constable took the watch from the prisoner's person. The constable examined a box which the prisoner admitted to be his, and found on the top several articles of female apparel, and under these some silver spoons and sugar tongs of the prosecutor. The prisoner said, 'I did not know the silver was there; the watch is Mrs. F.'s; I got it from her.' The wife proved that she ordered the prisoner to get a fly and take away the boxes, and that the prisoner was not there when she was packing. He did not know of her putting in the spoons or sugar tongs. It was objected that the charge against the prisoner could not be maintained, as he was acting under the control of his mistress, and that she could not be legally charged with stealing from her husband; the jury were directed that, if the prisoner and the wife went away with the intention of carrying on an adulterous intercourse, and if he, when so going away, was concerned in taking away the property of the prosecutor, he was guilty; and, on a case reserved upon the point so raised, Erle, C. J., after argument for the prisoner, said, 'Upon these facts the taking of the box animo adulterii was evidence of larceny. The prisoner took his master's property, and with it his master's wife, with the intention of committing adultery. The conviction must therefore be affirmed.' ()

So, where a wife took thirty-five sovereigns and some clothes from her husband's bedroom, and as she left the house said to the prisoner, 'It's all right, come on;' and he left in a few minutes after, and they were traced to a public house, where they slept together, and when taken into custody the prisoner had twenty-two sovereigns upon him: the jury found him guilty of larceny, on the ground that he received the sovereigns from the wife, knowing that she took them without the authority of her husband; and the conviction was held right; for when a wife becomes an adulteress, she thereby determines her quality of wife, and her property in her husband's goods ceases; and in this case the prisoner was the accomplice of the wife, assisted her, and took the sovereigns, knowing that she had taken them without the husband's consent. (k)

The prisoner, having lodged in the prosecutor's house about a year,

of which the wife had the key, which the prisoner had given her, and she said she put them there; the name of the wife was changed, and a passage ticket taken out in the joint name of Walker. Lefroy, C. J., left the case to the jury, and the prisoner was convicted. R. v. Glassie, 7 Cox, 1. This case is extremely ill-reported, and very

little reliance can be placed on it. The facts above stated are taken from the different parts of the report. C. S. G.

(j) R. v. Mutters, 34 L. J. M. C. 54; L. & C. 511.

(k) R. v. Featherstone, Dears. C. C. R. 369; 23 L. J. M. C. 127.

left, but there was no evidence as to the time or manner of his leaving. The next day the prosecutor's wife left, with only a small bundle under her arm. The prisoner was apprehended on board a vessel bound to Quebec, in company with the wife, who was passing under the name of Mrs. Deer, and the prisoner had tickets for Quebec in the names of Mr. and Mrs. Deer. A great quantity of the prosecutor's property, very much more than could have been comprised in the wife's bundle, and not confined to the wife's clothes, was found in the prisoner's cabin and on his person, on the 10th of April, and it had been missed on the evening of the 9th of that month. There was no other evidence who had taken the articles from the house. The jury found the prisoner guilty of receiving, knowing the goods to have been stolen; and it was held that there was some evidence to support the conviction.' (1) It was held before the Married Women's Property Act that where adultery was neither committed nor intended, a person was not guilty of larceny in aiding a wife in taking away her husband's goods. (m) Now, however, by the combined effect of ss. 12 and 16 of that Act, (n) a wife can be convicted of taking her husband's goods when about to leave or desert him, and her accomplice would therefore be equally guilty.

Where a wife took her husband's goods from a place within the jurisdiction of the Central Criminal Court, and was found committing adultery with the prisoner at Liverpool, the husband's goods being then in the prisoner's possession, but there was no evidence that the goods had been under the prisoner's control at any place within the jurisdiction of the Central Criminal Court, it was held that the prisoner could not be indicted in that court for larceny. (0)

Where the prisoner was charged with receiving stolen goods, and it appeared that they had been brought to him by the prosecutor's wife, who had committed adultery with him, it was held before the Married Women's Property Act, 1882, that he could not be convicted because a wife could not steal her husband's goods. (p) It would seem, however, that since that Act he might be convicted in such a case. (q)

A feme covert shall not be deemed accessory to a felony for receiving the husband who has been guilty of it, as her husband shall be for receiving her; nor shall be a principal in receiving her husband when his offence is treason; for she is sub potestate viri, and bound to receive

him. (r) Neither is she affected by receiving, jointly with her husband, any other offender. ($)

It is no ground for dismissing an indictment for burglary or larceny as to the wife, that she is charged with her husband and described as his wife; for the indictment is joint and several according as the facts may appear; and on such an indictment the wife may be convicted, and the husband acquitted. (t)

In burglary or larceny, if a man and woman are indicted, and the woman pretends to be the man's wife, but is not so described in the indictment, the onus of proving that she is his wife is upon her. Thus where Thomas Wharton and Jane Jones were indicted for burglary, and the woman pleaded that she was married to Wharton, and would not plead to the name of Jones, the grand jury who found the bill was sent for, and in their presence, and with their consent, the Court inserted the name Jane Wharton, otherwise Jones, not calling her the wife of Thomas Wharton, but giving her the addition of spinster, upon which she pleaded; and the Court told her that if she could prove that she was married to Wharton before the burglary, she should have the advantage of it but on the trial she could not, and was found guilty, and judgment given upon her. (u) If a woman be indicted as a single woman, and pleads to the felony, that is prima facie evidence that she is not a feme covert, but is not conclusive of the fact. (v) And in such a case such evidence must be given as to satisfy the jury that the prisoners are in fact husband and wife, in the same way as to convince them of any other fact. (w) But cohabitation and reputation will be sufficient evidence upon such point. William and Mary Atkinson were indicted for disposing of forged country bank notes; and it appeared that the man disposed of them in the presence of the woman, at a public-house, to which they went together to meet the person to whom they were disposed of; that the man went thither by appointment, and the woman had a bundle of the same notes in her pocket. There was evidence, on the part of the prosecution, that they had lived and passed for man and wife for some months; upon which it was put to Gibbs, C. B., whether the woman was not entitled to an acquittal, and he thought she was; and the counsel for the prosecution at once acquiesced. (x) Where, upon an indictment against a woman for harbouring a murderer, knowing him to have committed the murder, it was probable that a marriage had taken place between the parties, in Ireland, at a place where the registers were very imperfectly kept, and the parties had for many years considered each other as man and wife, no evidence was offered for the prosecution, with the sanction of the Court. (y)

(r) 1 Hale, 47. 1 Hawk. P. C., c. 1,

8. 10.

(8) 1 Hale, 48, 621. But if the wife alone, the husband being ignorant, do knowingly receive B., a felon, the wife is accessory and not the husband. 1 Hale, 621. (t) 1 Hale, 46.

(u) R. v. Jones, Kel. 37.

(v) Quinn's case, 1 Lewin, 1. Reg. v. Woodward, 8 C. & P. 561. Patteson, J.

(w) R. v. Hassall, 2 C. & P. 434. Garrow, B. Quære, whether the proper course for a woman so indicted is not to plead the

wrong addition on arraignment, as by pleading to the felony she answers to the name by which she is indicted. C. S. G.

(x) R. v. Atkinson, O. B. Jan. Sess. 1814. MS. Bayley, J.

(y) R. v. Good, 1 C. & K. 185. Alderson, B., observed, If the prisoner went through the ceremony of marriage, and it should have turned out that there was some irregularity in the marriage, nevertheless if it appeared that she had acted under the supposition that she was the wife of the murderer, and according to the duty which