State v. Brecht

• Decision Date: 10 June 1889
• Citation: 42 N.W. 602,41 Minn. 50
• Parties: State of Minnesota v. William Brecht
• Court: Minnesota Supreme Court

42 N.W. 602

41 Minn. 50

State of Minnesota v. William Brecht

Supreme Court of Minnesota

June 10, 1889

Defendant was tried and convicted in the district court for Goodhue county, before McCluer, J., on an indictment for adultery committed with Margaretha Schlichthaber, and appeals from an order refusing a new trial. The indictment did not state upon whose complaint the prosecution was instituted. At the trial it appeared that complaint was made before a justice of the peace by Frederick Schlichthaber, (husband of Margaretha,) and that after examination the defendant was discharged; and Frederick also testified that he went voluntarily before the grand jury to institute the prosecution, and still desired to prosecute his wife and the defendant.

Order affirmed.

J. C McClure, for appellant.

Moses E. Clapp, Attorney General, and F. M. Wilson, for the State.

OPINION

Gilfillan, C. J.

This was an indictment for adultery. The defendant challenged the panel of the petit jury, on the ground that it was illegally drawn, in this: that the clerk put only 24 instead of 72 names in the box from which to draw the jurors for the term. The certificate made by the clerk and sheriff and justice, in whose presence he drew the panel, and filed, and on which the venire issued, does state that 24 names were put in the box, and does not state that there were any more. If the certificate were the only admissible evidence of the manner of drawing, then it would appear conclusively that the panel was improperly drawn. But the regularity of the drawing may be proved by the testimony of the clerk or the officers present, even though it contradict the certificate. State v. Gut, 13 Minn. 315, (341.) The bill of exceptions shows that the challenge was tried and disallowed, but does not show upon what evidence it was tried; and of course it must be presumed to have been upon evidence legal and sufficient to justify the conclusion.

When the trial commenced, the defendant objected to the introduction of any evidence, on the ground that the indictment does not state facts sufficient to constitute a public offence. Under that objection the point is made that the indictment ought to allege that the prosecution was commenced on the complaint of the injured husband or wife that the fact is jurisdictional and ought to be alleged. The objection we have stated can hardly be said to present that distinct point, but there were other exceptions during the trial that raise the question, and it is involved more or less directly in eight or ten of the assignments of error; and so we consider it under the assignment of error based on this objection. Section 262 of the Penal Code, after defining the crime of adultery and prescribing the penalty, provides: "But no prosecution shall be commenced except on the complaint of the husband or the wife, save when such husband or wife is insane." It must be entirely apparent, the policy of the statute as to this offence being that if the parties injured choose to acquiesce in the wrong done, no one else ought to be allowed to move in the matter, that where there are two persons injured, either may complain; as, where the guilty parties are both married, the husband of the one or the wife of the other may make the complaint. This disposes of two of the assignments of error, which insist that in this case the wife of the defendant ought to have made the complaint.

The statute does not point out how the question shall be raised that the prosecution was not commenced on the complaint of the proper person. The making of the complaint is no part of the offence. The description of the offence is complete without reference to it, nor does it go to the jurisdiction either of the court or grand jury. The court has jurisdiction of any indictment, whether good or bad, rightfully or wrongfully found, if found by the proper grand jury. And the grand jury may inquire of any indictable offence alleged to have been committed within their county. If they find an indictment for such an offence in the county where, by reason of some statutory, preliminary requisite, they ought not to have found it, it is, at most, error or irregularity, but does not affect their jurisdiction. For the reason that the complaint of the proper party is not jurisdictional, nor descriptive of the offence, it is not necessary to allege it in the indictment or prove it on the trial. It does not go to the merits of the trial, but only to the regularity of the previous proceedings. At common law the objection might properly be raised by plea in abatement. Under our statute there is strictly no plea in abatement in criminal cases. Gen. St. 1878, c. 111, § 1; c. 112. A motion to set aside the indictment seems intended to take the place of such a plea. Chapter 110. Matters specified in section 1, c. 110, are of the kind that at common law would be proper for such a plea. But that section does not specify all objections, not affecting the question of guilt, which a defendant has a right to make to an indictment, and the specification of them is not to be regarded as exclusive. That the defendant was required to testify before the grand jury which found the indictment against him is not one of the grounds specified, yet,...