185 Iowa 90 | Iowa | 1918
I. Section 4606 of the Code provides that:
In State v. Chambers, 87 Iowa 1, and State v. Schultz, 177 Iowa 321, at 327, we held that the testimony was receivable on a prosecution for incest; in State v. Bennett, 31 Iowa 24, and State v. Hazen, 39 Iowa 648, on charge of adultery; and in State v. Sloan, 55 Iowa 217, and State v. Hughes, 58 Iowa 165, that it was competent on a prosecution for bigamy. The State urges that the reason underlying the holding in said cases sustains permitting the wife to testify against the husband on the prosecution for assault with intent to rape, at bar. If the reception of this testimony was proper, it must be because the reason of said decisions justifies it. It is no justification that an. instruction limited the application of the testimony of the wife to the charge being tried. On the contrary, if the testimony was incompetent, such instruction was injurious, because the charge emphasized that such testimony was permissible
In People v. Westbrook, 94 Mich. 629 (54 N. W. 486), it is held that an indecent assault by a husband on his nine-year-old daughter fails to make the wife a competent witness against the husband, "because such- assault is not a “personal” wrong or injury to the wife. The State differentiates this with the argument that the Michigan statute is unlike our own, in that it prohibits receiving such testimony, except where the action “grows out of a personal wrong or injury done by one to the other.” We are not prepared to say there is any substantial difference in the statutes; for, while a crime committed against the other may possibly include more than a personal wrong committed by one against the other, of necessity it includes such wrong. In other words, while a crime committed by husband against wife cannot be more than a personal wrong committed against her by him, such crime is at least as much as that. But suppose that, to now, it has never been Held tHat the wife may not testify on a prosecution of the husband for assault with intent to rape. There must be a first time for right and reasonable decisions. For that matter, it may be said that no decision that the testimony here is receivable has evér been made, unless holding that such testimony is proper on prosecutions for incest, adultery, or bigamy settles that it is proper on a charge of assault with intent to rape. Of course, adultery by the husband is a crime against the wife.. And of necessity, incest and bigamy include adultery. That fact alone is a sufficient reason why holding that adultery, bigamy, and incest are within the exception is no warrant for holding that an intent to commit which, if consummated, would involve adultery, brings the case within this exception. How can it, in reason, be sáid that a naked intent to ravish a third person is “a crime committed against” the wife ? The State concedes the exception applies to nothing but sexual crimes. How can it be maintained
We are of opinion that the statute exception does not apply to a prosecution for assault with intent to commit rape.
III. In Instructions 5 and 8, it is said, in effect, to be no defense that “defendant expected to accomplish this purpose without opposition on the part of the prosecutrix.” It is urged in the exceptions as to this instruction that this left the jury to conclude that defendant might be convicted if he, at the time of the assault on trial, “expected to-have, at any future time, sexual intercourse with the prosecutrix with opposition;” and that the instruction erred for not confining the expectation to have sexual intercourse “to then and there at the time of the assault;” further, that the charge was too indefinite “as to time and place as to when the said defendant expected to accomplish such purpose.” In our opinion, these complaints are hypercritical.
For the error in permitting the wife of defendant to testify against him, the judgment must be reversed, and the cause remanded. — Reversed and remanded.