Molyneux v. Willcockson
| Decision Date | 24 October 1912 |
| Citation | 137 N.W. 1016,157 Iowa 39 |
| Parties | IOWA MOLYNEUX, Relator, v. K. E. WILCOCKSON, Judge, Respondent |
| Court | Iowa Supreme Court |
Certiorari from Mahaska District Court.--HON. K. E WILCOCKSON, Judge.
THIS proceeding by certiorari is brought to review the action of the trial court in committing the plaintiff for contempt in refusing to answer certain questions propounded to her as a witness before the grand jury, in a prosecution of her husband for the crime of forgery.--Annulled.
Order Annulled.
Stockman & Baker, and J. A. Devitt, for relator.
Frank M. Beatty, for respondent.
Before the grand jury investigating a charge against J. I. Molyneux for the crime of forgery, his wife, the relator, was shown certain written instruments purporting to be signed by herself and husband, and was asked whether she signed her name to such exhibits, and whether she authorized her husband to sign her name to any or all of them and each of these questions she refused to answer. Thereupon the grand jury appeared in open court and made a statement that the questions related to the crime of forgery, charged to have been committed by the husband of the witness, and the court, after hearing the reasons assigned by the witness for her refusal to answer, directed that she should answer, and upon her persistent refusal to do so ordered her to be committed for contempt. It is the legality of this action of the court which is questioned in this proceeding by certiorari.
The provision of the Code relied upon by plaintiff as an excuse for refusing to answer the questions propounded to her is as follows:
Sec 4606. Neither the husband nor wife shall in any case be a witness against the other, except in a criminal prosecution for a crime committed one against the other, or in a civil action or proceeding one against the other, or in a civil action by one against a third party for alienating the affections of the other, but in all civil and criminal cases they may be witnesses for each other.
It is conceded, of course, that this section furnishes a complete excuse for the refusal to answer, unless the crime charged against the husband in the prosecution before the grand jury was a crime committed by him against his wife. With reference to this matter, it appears that the charge was of forging the name of his wife to instruments importing a joint liability of both.
The question is therefore whether the forgery of the wife's name to an instrument purporting to impose upon her a pecuniary obligation is a crime against her, within the provision of the statute above quoted. In this connection it must be borne in mind that forgery is a crime involving an intent to defraud. See Code, sections 4853, 4854; State v. Sherwood, 90 Iowa 550, 58 N.W. 911.
The fraud involved consists in the intent to injure the person who may be induced to accept as valid an instrument which is without legal validity. The natural effect of the forgery of the wife's name to the instrument would not be to render her liable thereon, for no liability of the wife would thus be created, but to defraud a person who was induced to accept it, relying upon the genuineness of her signature. We think that it is quite evident, therefore, in the nature of things, that the crime charged against the husband was not committed by him against his wife, but rather one committed by him against the person to whom the forged instruments were delivered, or intended to be delivered, to his injury.
The authorities on the general question as to what is a crime against the wife by the husband, such as to remove the bar to her testifying against him as a witness, are not entirely harmonious. In the first place, it may be stated that according to the general weight of authority, such a statutory exception embodies merely an exception which was recognized at common law; and therefore the general current of decisions with reference to the right of the wife to testify against the...
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