25 Pa. Super. 609 | Pa. Super. Ct. | 1904
Opinion by
The information in this case was made upon oath of A. L. Boyer and charged that the defendant did entice Margaret E. Boyer, the wife of affiant, from her home, and lived openly and notoriously with her in fornication and adultery for and during a period of nine months, between September, 1902, and July, 1903; and that during said time the said Margaret E. Boyer was a weak minded woman and not capable of giving her consent to sexual intercourse.
An indictment was presented to the grand jury in which the defendant was charged in the first count with felonious rape and in the second and third counts with fornication; which bill was returned, not a true bill as to the first count and a true bill as to the second and third counts. The defendant then moved to quash the indictment for the reason that the prosecutor, being the husband of the woman with whom the defend
It is not necessary in disposing of this case to review the many statutes and decisions involving the competency of husband and wife to testify against each other. There is a marked distinction between competency as a prosecutor and competency as a witness on the trial of the cause in court. Where, as in many instances, there is a choice of accusation, that is, where the defendant may fairly be accused of one crime or another or of more crimes than one growing out of the transaction, it is plainly the duty of the magistrate taking the complaint to see that the accusation and the commitment thereon are broad enough to cover the whole; leaving to the grand jury or prosecuting officer to elect between the several methods of pursuing the defendant: Bishop, Criminal Law, sec. 33.
It is not required that the person who makes the information to set the machinery of the law in motion should be the prosecutor marked on the indictment, or be a witness sworn for the commonwealth on the trial. It is not indispensable that the informer or prosecutor should have personal knowledge of the facts necessary to convict the defendant. If he is able to swear that he is informed of them and believes the facts stated in the information to be true is all that has ever been required to justify a magistrate in issuing a warrant for the arrest of the alleged criminal. Such prosecutions are carried on in the name of the commonwealth and have for their principal object the security and happiness of the people in general and not merely the private redress of personal wrongs. Nor is it necessary to enumerate the classes of persons who are affected with a general incompetency and whose oath could not be received in any legal proceeding. Those only are disqualified from becoming prosecutors who either from religious scruples or infidelity, which renders them incapable of taking an oath, or from infamy which presumes them unworthy of credit and are generally incompetent to become witnesses : 1 Chitty, Criminal Law, 2. To these classes may be added idiots, lunatics, and children too young to understand the sanctity of an oath.
Under this act, this court held in Commonwealth v. Fitzpatrick, 18 Pa. Superior Ct. 529, in a prosecution against the wife for adultery, that the husband was competent to testify to the fact of marriage. The rule of the common law having been so far abrogated as to make a husband or wife a competent witness against the other in certain issues and as to a certain fact, he or she when called in such issue to testify as to such facts stands in the same situation as any other witness and can claim no other or greater privilege.
We are confined to the provisions of our act of 1887, which is severe enough in its restrictions, but are not disposed to contract its plain expression. The husband was specially competent to prove the fact of marriage. The crime charged in the information is a serious one to the public and while it is desirable that criminal prosecutions should be begun solely from motives of regard for the public welfare, we must take human nature as we find it. It would be a harsh construction of our law to hold that an injured husband has not legal capacity to invoke the aid of our criminal courts to punish the de^
Cornelius v. Hambay, 150 Pa. 359, does not apply to this case. That was an action in trespass for crim. con. The 5th.section of the Act of May 23, 1887, P. L. 158, limits the competency of the husband in a civil proceeding by much more narrow bounds than the second section, in a criminal proceeding, the second exception in which controls the case.
The order of the court quashing the indictment is reversed, and the record is remitted to the court below with a procedendo.