87 Iowa 1 | Iowa | 1893
In State v. Bennett, 31 Iowa, 24, a prosecution against the wife for adultery, it was held that the husband was a competent witness against his wife. See, also, State v. Hazen, 39 Iowa, 648. In State v. Sloan, 55 Iowa, 217, it was held that, on the trial of the husband for bigamy, his legal wife was a competent witness in behalf of the state. The court says: “In our opinion, if the defendant is guilty of bigamy, he committed a crime against his wife. "We think she was a competent witness.” See, also, State v. Hughes, 58 Iowa, 165.
In People v. Quanstrom, 53 N. W. Rep. 165, the supreme court of Michigan holds, under the Michigan statute, that “bigamy on the part of the husband is not such a personal wrong or injury to the wife as to allow her to testify against the husband.” Section 7546 of that statute is as follows: “A husband shall not be examined as a wdtness for or against his wife without her consent, nor a wife for or against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other.” In Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. Rep. 165, a prosecution for polygamy, it was held, under the Code of Criminal Procedure of Utah, that the offense charged was not such a wrong against the wife as to render her testimony admissible. The exception contained in that code is where the testimony is given with the consent of both, or “in cases of criminal violence upon one by the other.” It will be noticed that the exceptions in these statutes apply to personal wrong or injury, while under ours they apply to “all criminal proseen
Compton v. State, 13 Tex. App. 271, is a case identical with this. That was a charge of incest against the husband with the daughter of his wife, and the competency of the wife to testify was raised, under a statute the same as ours. The court held that she was not a competent witness against her husband, overruling Morrill v. State, 5 Tex. App. 447; Roland v. State, 9 Tex. App. 277. It is the fact of the marital relation that makes the acts here charged constitute the aggravated crime of incest. Were it not for this relation, these acts would constitute a much less grave offense. ■ The crime charged is surely as much, if not more, a crime against the wife of the accused than would be the crime of adultery or bigamy. Following former decisions of this court, we hold, that this is a prosecution for a crime committed . by the <■ defendant against his wife, within the meaning of section 3641, and that Mrs. Chambers was a competent witness for the state.
Counsel for the appellant, in argument, called attention to section 3642 of the Code, providing that neither husband nor wife .-can be examined in any case as to any communication made by the one to the other while married. The record fails to show that any objection was made on the trial, based upon this statute. As already - stated, the objections were grounded solely upon the claim that the witness was incompetent. It does not appear from the record that the witness was called upon to testify to any communication made to her by her husband, within the meaning of the section referred'-to. The rule of this section, in its spirit and extent, is analogous to that which excludes confidential communications. 1 Greenl. Ev., section 338. There was no error in permitting Mrs. Chambers to testify,
III. The appellant asked the following instructions, which were refused, and of which refusal he complains:
“2. The crime of incest can only be committed by the mutual acts of the parties, and both parties are equally guilty, under the facts pleaded in the indictment; and hence, in this case, if you find from the evidence of the pros-ecutrix, Sarah D. Cowden, that she and the defendant had sexual intercourse, then, in law, she was an accessory and accomplice with the defendant to the crime charged in the indictment, and you can not convict on her testimony alone, but she must be corroborated by other witnesses, tending to connect the defendant with the crime charged.”
“4. In order to' constitute the crime of incest, the defendant and the prosecutrix, Sarah D. Cowden, must have mutually agreed to have, and did have, actual copulation; and unless the evidence satisfies you of this fact beyond a reasonable doubt, you should acquit the defendant.”
Code, section 4559, is as follows: “A conviction can not be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense, or the circumstances thereof.” The appellant contends “that both parties must mutually agree to have sexual intercourse, and have actual copulation, before the crime of incest is committed;” that, if consent on the part of the female is wanting, it is not incest, and if she consents she is an accomplice, and must be corroborated, as provided in section 4559. In State v. Sanders, 30 Iowa, 582, the defendant was
We find no errors in the record, and the judgment of the district court is, therefore, appikmed.