The body of the indictment is in words as follows: “ The grand jury of the county
And, when the indictment shows that the defendant . was married at the time the prosecution was commenced, it should allege ■ that the prosecution was commenced on the complaint of the husband or wife. Such an allegation is necessary to show that the court has jurisdiction to try the case, for the reason that an indictment must show on its face that the offense which it charges is triable in the court to which it is returnable. Code, sec. 4305.
But the question raised by the demurrer in this case is, whether it is necessary, when the indictment does not show that the prosecution was commenced on the complaint of the husband or wife of the defendant, that it should show that the defendant was not married when the proceedings were instituted. In considering this question it must be remembered that the complaint required by the statute is not an element of the crime. State v. Donovan, 61 Iowa, 278. The indictment discloses no fact from which the marriage of defendant can be inferred. We are not justified in presuming that he was married when these proceedings were commenced. The indictment shows that defendant committed the crime of adultery, and that his guilt does not depend upon his state as to being married or single at the time of the act: Under these circumstances, if defendant was married, the failure of his wife to make complaint was a matter of defense, which he was required to prove in order to take advantage of it. It is not necessary to negative an exception made in a criminal statute, unless it adds a qualification to bring a case within it, which, but for the qualification, would be without it. State v. Stapp, 29 Iowa, 551; 10 Amer. & Eng. Enc. Law, 578,