State v. Briggs
| Citation | 27 N.W. 358,68 Iowa 416 |
| Parties | THE STATE v. BRIGGS |
| Decision Date | 19 March 1886 |
| Court | United States State Supreme Court of Iowa |
Appeal from Hardin District Court.
THE defendant was convicted of the crime of adultery, and sentenced to a term in the penitentiary, and from this judgment he appeals to this court.
AFFIRMED.
T. H Milner, for defendant.
A. J Baker, Attorney-general, for the State.
The indictment on which the defendant was tried, omitting the portions which are merely formal, is as follows: "The said Samuel W. Briggs did, on the sixteenth day of March 1884, and on divers other days and times within eighteen months prior to the finding of this indictment, in the county aforesaid, commit the crime of adultery, by then and there having carnal knowledge of one Essie Etta Hutzell, she being at the time an unmarried woman, and not the wife of defendant, and the said Samuel W. Briggs being at the time a married man, having a lawful wife then living, to-wit: Lizzie Briggs, and the said defendant then and there having committed said acts contrary to and in violation of law; that on the second day of February, 1885, the said Lizzie Briggs, still being the lawful wife of the said Samuel W. Briggs, did commence prosecution by filing in the office of C. Burling, a justice of the peace of Hardin county, Iowa, her information, charging said defendant with said crime; that in the further progress of said prosecution said defendant was, on the sixth day of February, 1885, held to answer said charge at the next term of the district court of said county, in accordance with law, by said justice of the peace."
On the back of the instrument were indorsed the names of the witnesses on whose evidence the grand jury acted in finding it, and, among the names so indorsed, was that of Lizzie Briggs. When the grand jury returned the indictment they also returned what purported to be a minute of the evidence taken by them. Attached to the minutes was the following certificate, which was signed by the foreman of the grand jury: These minutes were placed by the clerk with the indictment, and retained in his office, but he did not mark them as filed. The defendant filed a demurrer to the indictment, which was overruled by the district court.
The first ground of the demurrer was that the indictment charges a series of offenses. It is provided by section 4300 of the Code that the indictment must charge but one offense. It is insisted that under this provision the indictment in question is bad. It is very clear that the state would not be permitted to charge in the same indictment distinct acts of adultery committed with different persons. It must also be admitted that each act of sexual intercourse between the accused and the woman named in the indictment, within the time covered by the indictment would be a distinct offense. The state, in making its proof, however, would not be confined to the date named or to any particular date within the time covered by the indictment, but would be permitted to prove the commission of the crime upon any day within that period, or within eighteen months before the finding of the indictment, the time not being an ingredient of the offense, and that being the period after its commission within which the indictment must be found. Code, § 4166. State v. Bell, 49 Iowa 440. The defendant could be convicted of but one offense under the indictment, and, as the state would be permitted to prove its commission either on the sixteenth of March, 1884, or on any other day within the eighteen months prior to the finding of the indictment, the allegation that he committed it on divers other day within that time may be rejected as surplusage. Cook v. State, 11 Ga. 53; U. S. v. La Coste, 2 Mason C.C. 129; Wells v. Com., 78 Mass. 326, 12 Gray 326.
II. Another ground of the demurrer was that it did not appear by any averment of the indictment, or by any indorsement thereon, that it was found at the instance of a private prosecutor. Section 4008 of the Code contains the following provision: "No prosecution for adultery can be commenced but on the complaint of the husband or wife." Another provision contained in section 4292 requires the grand jury, when an indictment is found at the instance of a private prosecutor, to state in an indorsement thereon the fact that it was found at the instance of such prosecutor. The position of the counsel is that, as the prosecution can be commenced only on the complaint of the husband or wife, such husband or wife is necessarily a private prosecutor, and, consequently, that the failure to indorse upon the indictment the fact that it was found at the instance of such prosecutor is fatal to the indictment. This position is not sound. The prosecution may be commenced either by making the complaint before the grand jury or by filing a preliminary information before a magistrate. When it is commenced by filing an information before a magistrate, it is not essential that the husband or wife should appear further in the case to prosecute it. State v. Baldy, 17 Iowa 39; Same v. Roth, 17 Iowa 336.
It is averred in the indictment that the wife of the defendant did commence the prosecution against him in that manner, and that he was held to answer the charges preferred against him by her. This averment fully meets the requirements of section 4008. The indorsement required by 4292 is not essential to the validity of the indictment. The requirement is merely directory, and the indorsement is required to be made to enable the court to tax the costs against the prosecutor, if it should be satisfied that the prosecution was malicious or without probable cause.
III. Another ground of the demurrer was that the minutes of evidence returned by the grand jury had not been filed by the clerk as required by section 4293. It is apparent that questions of this character cannot be raised by demurrer to the indictment. The facts constituting the crime of which the defendant is accused must be stated in the indictment, and questions as to the sufficiency of the statement of facts can be raised by demurrer, and its sufficiency as a pleading must be determined from its averments. The minutes of evidence returned by the grand jury, when filed by the clerk, constitute part of the record in the case, but they are no part of the indictment. The district court rightly overruled the demurrer.
IV. The defendant also filed a motion to dismiss the cause. This motion was supported by the affidavit of defendant's wife, in which she swore that, while she signed and swore to the preliminary information accusing defendant of the crime, she did not do so voluntarily, but acted under duress, and the coercion of threats by her parents and other persons; and that she did not voluntarily appear before the grand jury when that body was investigating the charge, and that she requested them to dismiss the charge, and not return an indictment thereon against her husband. In State v Roth, supra, it was held that the defendant was not concluded by the averment in the indictment that the prosecution was commenced on the complaint of the husband or wife, but that he might show by evidence that it was not commenced on such complaint. The defendant in that case, as in this, filed a motion to dismiss, and supported the same by the affidavit of his wife. He also offered evidence on the trial to disprove the allegation that the prosecution was commenced on the complaint of his wife, and, while it was held that the defendant was entitled in some manner to show the real fact, the question as to which was the...
To continue reading
Request your trial