State v. Oden

• Decision Date: 09 December 1896
• Citation: 69 N.W. 270,100 Iowa 22
• Parties: STATE v. ODEN.
• Court: Iowa Supreme Court

100 Iowa 22

69 N.W. 270

STATE

v.ODEN.

Supreme Court of Iowa.

Dec. 9, 1896.

Appeal from district court, Sioux county; Scott M. Ladd, Judge.

On the 15th day of November, 1893, the defendant was indicted on the complaint of A. H. Macomber, husband of Hilda Sophia Macomber, for the crime of adultery, alleged to have been committed on or about the 6th day of June, 1893, with said Hilda Sophia Macomber, the defendant then being a singleman. A verdict of guilty was returned, and judgment that defendant be imprisoned in the penitentiary for the period of one year and four months, and for costs, was entered thereon. Defendant appeals. Affirmed.Palmer & Van Dyke, for appellant.

Milton Remley, Atty. Gen., for the State.

GIVEN, J.

1. On the trial, the defendant called Mrs. S. Oden, who testified that she was married to the defendant on October 13, 1893, and had lived with him ever since that date. The state moved to strike this evidence as “incompetent, immaterial, and irrelevant,” which motion was sustained, and of this appellant complains. It will be observed that the crime is alleged to have been committed on or about the 6th day of June, 1893, and that the defendant was then a single man. It will also be noticed that the indictment was found on the 15th day of November, 1893, which was after the marriage of this witness and the defendant; and the question is whether, the defendant being married at the time complaint was made, it could be made by any other than his wife. Section 4008 of the Code provides that, “when the crime is committed between parties only one of whom is married, both are guilty of adultery, and shall be punished accordingly. No prosecution for adultery can be commenced but on the complaint of the husband or wife.” In State v. Roth, 17 Iowa, at page 341, this court said: “The object of the limitation of the statute, in our view, was to exempt the party from prosecution, unless the husband or wife of such party should commence the prosecution against him or her.” In State v. Wilson, 22 Iowa, at page 367, it is said: “That it was competent for the injured wife of the paramour of the defendant to make complaint, and that the grand jury were not bound to indict both or neither.” In that case the accused was an unmarried man, and the complaint was by the spouse of the other party to the crime. In Bush v. Workman, 64 Iowa, 206, 19 N. W. 910, wherein both parties to the crime were married, it was held that the statute “forbids prosecutions for adultery except when commenced by the spouse of the person prosecuted.” In State v. Mahan, 81 Iowa, 121, 46 N. W. 855, it was held that the indictment for the crime of adultery may be good, although it does not show that the prosecution was commenced upon the complaint of the husband or wife of the accused, nor that the latter is unmarried, and that, if the defendant was married, the failure of his wife to make complaint was a matter of defense, which he was required to prove in order to take advantage of it. It is entirely clear from these rulings that, if the defendant had been married at the time of the alleged commission of the offense, he could only be prosecuted upon the complaint of his wife; but the question is whether, under the facts of this case, the limitation of the statute applies. If it does, this evidence was material, and should have been admitted; otherwise, not.

In State v. Bennett, 31 Iowa, 24, it is said that this limitation “leads to the inference that the offense is rather a crime against the partner to the marital relation than against society in general. So long as the injured husband or wife suffers the wrong in silence, society, notwithstanding the injury to public morals, is without redress.” In State v. Corliss, 85 Iowa, 18, 51 N. W. 1154, it is said of this limitation: “This provision is grounded in the regard which the law has for the marital relation, and the right of the husband and wife to condone the wrongs of either towards the other.” Whether we consider adultery as an offense against the...