State v. Corliss

• Decision Date: 10 May 1892
• Citation: 51 N.W. 1154,85 Iowa 18
• Parties: STATE v. CORLISS.
• Court: Iowa Supreme Court

85 Iowa 18

51 N.W. 1154

STATE

v.CORLISS.

Supreme Court of Iowa.

May 10, 1892.

Appeal from district court, Buchanan county; J. L. HUSTED, Judge.

Indictment charging the defendant with unlawfully and burglariously breaking and entering a certain dwelling house in the night time “with the intent then and there to commit a public offense, to wit, the crime of adultery.” Demurrer upon the ground that adultery is not a public offense. Demurrer sustained, and the state appeals.John Y. Stone, Atty. Gen., and H. W. Holman, Co. Atty., for the State.

GIVEN, J.

1. Section 3891 of the Code, under which this indictment was found, provides as follows: “If any person break and enter any dwelling house in the night time, with intent to commit any public offense, * * * he shall be deemed guilty of burglary, and shall be punished according to the aggravation of the offense, as provided in the next two sections.” The question raised by the demurrer is whether adultery is a public offense, within the meaning of that section,--a question that finds ready answer, we think, in other sections of the Code. Section 4008 declares adultery to be a crime punishable by imprisonment in the penitentiary or by fine and imprisonment in the county jail. Section 4166 provides that “an indictment for a public offense must be found within eighteen months after the commission thereof, in the following cases, and not after,” and names adultery as one of the following cases, clearly classifying and recognizing it as a public offense. Section 4103: “Public offenses are divided into felonies, misdemeanors,”--and section 4104 defines: “A felony is a public offense which is, or in the discretion of the court, may be, punished by imprisonment in the penitentiary.” That adultery is an indictable offense, and can only be punished by conviction on indictment, will not be questioned. An indictment is defined in section 4295 as “an accusation in writing found and presented by a grand jury, * * * charging that a person therein named has done some act or been guilty of some omission which by law is a public offense punishable on indictment.” The authority to indict and punish adultery is upon the theory that it is a public offense. True, the offense is an offense against the husband or wife of the guilty party; but it is none the less an offense against the public, for that reason. All offenses against persons or property are in some sense offenses against the injured individual, but ...