State v. Berlin

42 Mo. 572 | Mo. | 1868

Ea00, Judge,

delivered the opinion of the court.

The appellant was proceeded against, in the St. Louis Court of Criminal Correction, upon information made by his wife, Ann Berlin. The complaint sets-out specifically the following charges : 1. Open and notorious adultery. 2. Lewdly and lasciviously abiding and cohabiting with one Mary Jarrett. 3. Open, gross lewdness and lascivious behavior. 4. An open and notorious act of public indecency, grossly scandalous.

The defendant was tried and convicted, and his punishment assessed at a fine of $300 and imprisonment in the county jail for a pei’iod of thirty days. The proceeding was evidently instituted under the provisions of section 8, chap. 206, Gen. Stat. 1865, and the complaint charges in separate counts all the offenses embraced in that section. The question raised by the counsel for the appellant as to the power of the legislature to authorize such a proceeding may be briefly disposed of. The statute, in terms, makes all the offenses charged in the complaint misdemeanors. The act creating the Court of Criminal Correction for St. Louis County makes all such offenses cognizable before that tribunal, when committed within its proper jurisdiction, and authorizes proceedings to be instituted by complaint instead of indictment. The authority of tire legislature to confer such a power upon that court was fully considered in a case determined by this court at its March term, 1867. (State v. Ebert, 40 Mo. 186.) The point was distinctly made in that case, as it is here, that the act establishing the Court of Criminal Correction was in direct conflict with the provisions of section 24, article 1, of the Constitution of the State. The court then held that mere misdemeanors were not intended to be embraced by the words “ indictable offenses,” as used in that section, but only felonies. The reasons for that conclusion need not be repeated in the present case. There is another question, however, raised by the motion in arrest of judgment, which we think is decisive of this whole case, and we proceed to consider it without reference to any others that are presented by the transcript. The complaint was made and sworn, to by the wife of the defendant. The question here is, whether the rule of law which would have prohibited her from testifying on the trial, either for or against her husband, will also make her incompetent to initiate such a proceeding as this. In the amended act creating the St. Louis Court of Criminal Correction (Adj. Sess. Acts ’68, p. 269), it is provided by section 20 that if the complaint is made by the prosecuting attorney or his assistant, it need not be under oath, and the party complained of is then notified by summons to appear and answer. If, however, it is made, in the language of the act, “ by any other person,” it must be sworn to, and thereupon a warrant is issued and the offender apprehended and held in custody or recognized to appear on the day of trial. In the very nature of the case, the words “ any other person” can only mean such person as would be (under the general rules of law) competent to testify. It is true she is not introduced as a witness at the trial, but it is at her instance and upon her sworn statements of offenses committed by the husband that the process is issued and he is subjected to a criminal prosecution. The law excludes her from testifying in such a case, upon principles of public policy. “ Eor,” Mr. Greenleaf says, “it is essential to the happiness of social life that the confidence subsisting between husband and wife should be sacredly protected and cherished in its most unlimited extent; and to break down or impair the great principles which protect the sanctities of that relation would be to destroy the best solace of human existence.” The exceptions to this rule are few in number, and are only allowed for the “ sake of public justice,” or “for the protection of the YYife in her life and liberty.” Certainly the reasons of the rule, as above stated, are broad enough to cover every imaginable proceeding against the husband not embraced in these exceptions. It will not be pretended that there is any thing in the case at bar that brings it within either class of excepted cases. To admit the practice of permitting either wives or husbands to institute such proceedings against each other would be establishing a precedent most dangerous to the best interests of society, and one which would go very far to break down this barrier so wisely interposed by the law for the protection of the sacred relation of marriage. The complaint not having been made by a person competent under the statute, the proceedings against the defendant were wholly unauthorized, and must fall to the ground.

The other judges concurring,

the judgment of the lower court will be reversed and the cause remanded.