State v. Chambers

• Decision Date: 17 January 1893
• Parties: STATE v. CHAMBERS.
• Court: Iowa Supreme Court

87 Iowa 1

53 N.W. 1090

STATE

v.CHAMBERS.

Supreme Court of Iowa.

Jan. 17, 1893.

Appeal from district court, Linn county; J. H. PRESTON, Judge.

Defendant was indicted, tried, and convicted of the crime of incest with his stepdaughter, Sarah D. Cowden. Judgment was entered against him on the verdict, from which judgment he appeals. The correctness of appellee's amended and additional abstract being denied, and no transcript filed, the case must be considered upon appellant's abstract alone.Charles W. Kepler, for appellant.

John Y. Stone, Atty. Gen., for the State.

GIVEN, J.

1. Appellant was charged with the crime of incest, before a justice of the peace, and on April 6, 1891, he waived examination, and gave bond to appear and answer before the grand jury. The district court being then in session, the grand jury returned an indictment on April 11, 1891, against the defendant, charging him with the same act of incest. Appellant moved to quash the indictment for the reason that no opportunity was given him to challenge the grand jury, and because the grand jury had no right to take jurisdiction of the case. It does not appear from the record whether the defendant was held to answer at the term of court then in session, or at the next term; but as the magistrate was not required to make return to the district court until “on or before its opening, on the first day of the next term thereof,” we must presume that he was held to appear at the next term. We must also presume that the magistrate did not make his return to the term then in session. From this record we conclude that the grand jury did not act upon a return from the magistrate, but took up the case as though there had been no preliminary hearing. The fact that appellant had been held to appear at a future term did not divest the grand jury of jurisdiction to examine the case upon its own motion. Having this jurisdiction, and having so examined the case, and returned the indictment, appellant had no right to challenge the grand jury.

2. Salina Chambers was called and sworn as a witness on behalf of the state, and, having testified that she was the wife of the defendant, “the defendant now objects to the competence of this witness to testify in this case,” which objection was overruled. The wife having testified to her marriage to the defendant, to improper conduct of his towards Sarah D. Cowden, and to what was said between witness and the defendant at the time, the defendant moved to strike out all her testimony “because she is the wife of the defendant, and is incompetent to testify against him.” This motion was overruled. It will be noticed that the objection and motion were solely upon the ground of incompetence of the witness, and the contention is that this is a criminal prosecution for a crime committed against the wife. Section 3636 of our Code provides as follows: “Every human being with sufficient capacity to understand the obligation of an oath is a competentwitness in all cases, both civil and criminal, except as herein otherwise provided.” The exception declared is found in section 3641, as follows: “Neither the husband nor wife shall, in any case, be a witness against the other, except in a criminal proceeding for a crime committed by one against the other, or in a civil action or proceeding, one against the other; but they may, in all civil and criminal cases, be witnesses for each other.” In State v. Bennett, 31 Iowa, 24,--a prosecution against the wife for adultery,--it was held that the husband was a competent witness against his wife. See, also, State v. Hazen, 39 Iowa, 648. In State v. Sloan, 55 Iowa, 217, 7 N. W. Rep. 516, it was held that, on the trial of the wife for bigamy, her legal husband was a competent witness in behalf of the state. The court says: “In our opinion, if the defendant is guilty of bigamy, he committed a crime against his wife. We think she was a competent witness.” See, also, State v. Hughes, 58 Iowa, 165, 11 N. W. Rep. 706. In People v. Quanstrom, 53 N. W. Rep. 165, the supreme court of Michigan holds, under the Michigan statute, that “bigamy on the part of a husband is not such a personal wrong or injury to the wife as to allow her to testify against the husband.” Section 7546 of that statute is as follows: “A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other.” In Bassett v. U. S., 137 U. S. 496, 11 Sup. Ct. Rep. 165, a prosecution for polygamy, it was held, under the Code of Criminal Procedure of Utah, that the offense charged was not such a wrong against the wife as to render her testimony admissible. The exception contained in that Code is where the testimony is given with the consent of both, “or in cases of criminal violence upon one by the other.” It will be noticed that the exceptions in these statutes apply to personal wrong or injury, while under ours they apply to “all criminal prosecution for a crime committed, one against the other.” There are many crimes other than against the person which one may commit against another. Compton v. State, 13 Tex. App. 271, is a case identical with this. That was a charge of incest against the husband with the daughter of his wife, and the competence of the wife to testify was raised, under a statute the same as ours. The court held that she was not a competent witness against her husband; overruling Morrill v. State, 5 Tex. App. 447;Roland v. State, 9 Tex. App. 277. It is the fact of the marital relation that makes the acts here charged constitute the aggravated crime of incest. Were it not for this...