State v. Henke

• Decision Date: 06 June 1882
• Citation: 12 N.W. 477,58 Iowa 457
• Parties: THE STATE v. HENKE
• Court: Iowa Supreme Court

12 N.W. 477

58 Iowa 457

THE STATE v. HENKE

Supreme Court of Iowa, Des Moines

June 6, 1882

Appeal from Plymouth District Court.

AN indictment was preferred against the defendant Henry Henke charging that he, being the husband of Mary Henke, did, on the 29th day of January, 1881, commit the crime of adultery with one Rina Deutimer. The indictment charges that the prosecution is commenced on the complaint of Mary Henke, the wife of the defendant. The defendant pleaded not guilty, was tried, convicted and sentenced to the penitentiary for two years. The defendant appeals.

REVERSED.

J. S Struble, for the appellant.

Smith McPherson, Attorney-general, for the State.

OPINION

DAY J.

I.

The evidence shows that Mary Henke was married to one Sinnett in 1868; and again about New Years, 1869; that he lived with her but four days after the second marriage, since which time she has not seen him, and that she never procured a divorce from him. Mary Henke was married to the defendant in 1874. The defendant and Rina Deutimer do not deny their cohabitation, but they claim that they were married. The whole case, therefore, hinges upon the legality of the marriage of the defendant to Mary Henke. Mary Henke for the purpose of establishing the fact that Thomas Sinnett was dead when she married the defendant, was allowed, against defendant's objection, to testify that about a year after Thomas Sinnett went away she received a letter from Montana from a man whose name she had forgotten, saying that "Thomas Sinnett died, and to let his wife know that he was dead," that she cannot read, but saw the letter, and that the letter was burned. The testimony was hearsay in a double sense. It amounts to no more than that some one read to her a letter from somebody saying that Thomas Sinnett had died. The admission of this evidence was clearly erroneous.

II. The court instructed the jury that "if the evidence shows that at the time of the marriage of the defendant Henry and Mary, Sinnett had * * * been voluntarily absent from Mary for the space of three years, and Mary did not then, to-wit: at the time of her marriage to Henry, know that Sinnett was alive * * * * then the marriage of Henry to Mary was legal." The court thus applied to this case the provisions of section 4010 of the Code, enacted in favor of a party contracting a second marriage, whose husband or wife had been continually absent for three years, and was not known to be living at the time of the second marriage. Thus by the action of the court a statute which was intended to establish innocence in a prosecution for bigamy, is made to establish guilt in a prosecution for adultery. The instruction is clearly erroneous. A presumption of the death of a party does not arise until he has been absent, without intelligence concerning him, for the period of seven years. Greenleaf on Evidence, § 41. It is claimed, however that even if...