State v. Mahan
| Decision Date | 14 October 1890 |
| Citation | 46 N.W. 855,81 Iowa 121 |
| Parties | STATE v. MAHAN. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Clinton county; W. F. BRANNAN, Judge.
Defendant was indicted for the crime of adultery. A demurrer to the indictment was sustained, and the state appeals.John Y. Stone, Atty. Gen., and A. R. McCoy, for the State.
The body of the indictment is in words as follows: “The grand jury of the county of Clinton, in the name and by the authority of the state of Iowa, upon complaint made, and prosecution commenced, by Arthur E. Bicknell, husband of Grace E. Bicknell, accused J. L. Mahan of the crime of adultery committed as follows: The said J. L. Mahan, on the 15th day of April, A. D. 1888, in the county aforesaid, did, willfully and feloniously, have sexual intercourse with Grace E. Bicknell, a married woman, who was not his wife, the said Grace E. Bicknell being then and there a married woman, and the wife of said Arthur E. Bicknell.”
1. The indictment was found by virtue of section 4008 of the Code, which is as follows: The complaint must be made by the husband or wife of the person accused of the crime. Bush v. Workman, 64 Iowa, 206, 19 N. W. Rep. 910. But an unmarried person may be guilty of the crime and punished as provided by the section quoted. State v. Wilson, 22 Iowa, 366. The indictment was evidently drawn upon the theory that the husband of the woman with whom the adultery was committed was the proper person to make the complaint, but the error does not vitiate the indictment. The allegation in regard to the complaint of the husband is immaterial, and may be treated as surplusage.
2. To constitute the statutory offense it is necessary that at least one of the parties to the act of sexual intercourse be married, and both may be. State v. Roth, 17 Iowa, 340. The indictment in this case shows that defendant had willful and felonious sexual intercourse with a woman who was the wife of another. It therefore shows that the crime of adultery was in fact committed by defendant. Had he been a married man it would have been essential to the success of the prosecution that it should have been commenced on the complaint of his wife. If the indictment had shown that he was married when the prosecution was commenced, it would have been necessary for the state to show that it was commenced on the complaint of his wife. State v. Henke, 58 Iowa, 459, 12 N. W. Rep....
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State v. Stevenson
...738; 1 Standard Proc. 598, citing State v. Corliss, 85 Iowa, 18, 51 N.W. 1154; State v. Maas, 83 Iowa, 469, 49 N.W. 1037; State v. Mahan, 81 Iowa, 121, 46 N.W. 855; v. Wilson, 22 Iowa, 364; People v. Davis, 52 Mich. 569, 18 N.W. 362; Bayliss v. People, 46 Mich. 221, 9 N.W. 257; Commonwealth......
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