When a married woman is indicted for a crime, and it is contended in defence that she ought to be acquitted because she acted under the coercion of her husband, the question of fact to be determined is whether she really and in truth acted under such coercion, or whether she acted of her own free will and independently of any coercion or control by him. To aid in determining this question of fact, the law holds that there is a presumption of such coercion from his presence at the time of the commission of the crime; this presumption, however, is not conclusive, and it may be rebutted. And in order to raise this presumption it is also established that the husband’s presence need not be at the very spot, or in the same *13room, but it is sufficient if he was near enough for her to be under his immediate control or influence.
No exact rule applicable to all cases can be laid down as to what degree of proximity will constitute such presence, because this may vary with the varying circumstances of particular cases. And where the wife did not act in the direct presence of her husband or under his eye, it must usually be left to the jury to determine incidentally whether his presence was sufficiently immediate or direct to raise the presumption. But the ultimate question, after all, is whether she acted under his coercion dr control, or of her own free will independently of any coercion or control by him; and this is to be determined in view of the presumption arising from his presence, and of the testimony or circumstances tending to rebut it, if any such exist. Commonwealth v. Burk, 11 Gray, 437. Commonwealth v. Gannon, 97 Mass. 547. Commonwealth v. Welch, 97 Mass. 593. Commonwealth v. Eagan, 103 Mass. 71. Commonwealth v. Munsey, 112 Mass. 287. Commonwealth v. Gormley, 133 Mass. 580. Commonwealth v. Flaherty, 140 Mass. 454. Commonwealth v. Hill, 145 Mass. 305, 307.
Applying these rules to the defendant’s requests for instructions in the present case, it is apparent that the second instruction requested could nqt properly be given, because it could not be said as matter of law that “ if he was on the premises and in the house, it would be sufficient”; that is sufficient presence to raise the presumption of coercion. That would be for the jury to determine. The exceptions to then omission to give the first and third requests are not now pressed; and there was no exception to the instructions as given, except so far as involved in the omission to give those requested.
The defendant, however, now contends that the effect of the instructions given was to put upon the defendant the burden of satisfying the jury of the facts necessary to create the presumption of coercion beyond a reasonable doubt. But this point was not taken at the trial, and the use of the words “beyond a reasonable doubt ” was apparently an inadvertence which did not harm the defendant. If attention had been called to the view now urged, the jury would no doubt have been told that those words applied solely to the burden resting upon the Common*14wealth to prove the sales. The instruction that, if the husband was near enough to see, hear, or know that she was making such sales, she was not liable, and must be acquitted, was too favorable for the defendant, as the presumption of coercion was merely a disputable one, and might not prevail in the minds of the jury, in view of the testimony and the circumstances of the case. Exceptions overruled.