State v. Wesie
| Decision Date | 29 October 1908 |
| Citation | 118 N.W. 20,17 N.D. 567 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Josie Wesie was charged, on information with adultery, and from a judgment sustaining a demurrer to the information, the state appeals.
Reversed and remanded.
Reversed and remanded.
Wm. H Barnett, State's Attorney, and S.W. Richardson, Assistant State's Attorney, for the state.
Adultery is a crime against the state as well as innocent party. State v. Clemenson, 99 N.W. 139.
Spouse of the married party to adultery may prosecute the unmarried participant. Parson v. People, 21 Mich. 509; Bayliss v. People, 9 N.W. 257; People v Davis, 18 N.W. 362; Wilson v. Circuit Court, 62 N.W. 293; State v. Brecht, 42 N.W. 602.
V. R Lovell, for respondent.
Prosecution for adultery can only be by spouse of the person charged with offense. State v. Bennett, 31 Iowa 34; State v. Mahan, 46 N.W. 855; People v. Dalrymple, 22 N.W. 20.
This is an appeal from a judgment of the district court for Cass county, sustaining a demurrer to an information charging the respondent, a married woman, with having committed the crime of adultery with one Pratt, a married man, and not the husband of said respondent. The information further alleges that the prosecution against the respondent was begun upon the complaint of the wife of said Pratt. The only question for determination is whether the wife of a man charged with adultery is, under the statute, competent to make complaint, as a basis for the institution of a criminal prosecution, against the other party to the crime, namely, the guilty woman. Section 8903 of the Revised Codes of 1905 provides, among other things, that "no prosecution for adultery shall be commenced, except on complaint of the husband or wife." The construction of this clause will determine this appeal. The same section defines adultery as "voluntary sexual intercourse of a married person, with a person other than the offender's husband or wife," and provides that when the intercourse is between a married woman and a man that is unmarried, the man is also guilty of adultery. The state contends that the prosecution can be instituted against either of the guilty parties, by the spouse of either one of them, while the respondent insists that the statute, correctly construed, admits only of a prosecution upon the complaint of the spouse of the party who is being proceeded against; hence that the prosecution cannot proceed or be maintained, or a conviction had, based upon the complaint of Mrs. Pratt against Mrs. Wesie. Laws of this character are evidently enacted for the purpose of protecting the sanctity of the home, and in recognition of the principle that the crime of adultery is a crime peculiarly infringing upon the rights of the innocent parties to the marriage relation, and that if such innocent parties see fit to condone the offense, and from a desire to avoid scandal and humiliation, and to preserve the integrity of the home, and prevent the disgrace of children and relatives, refuse to prosecute, the public is not sufficiently interested or injured to justify the institution of criminal proceedings, as in other cases, by any member of the community.
It may be assumed at the outset that the meaning of this statute in respect to who is competent to make the complaint within the limits mentioned is not clear, and that in such case the court is justified in seeking aid from the apparent intention of the legislature, and the construction which other courts have placed upon similar or identical language in statutes of other states. When the crime of adultery is committed between parties who are married, it is an injury to two innocent parties. The act cannot be committed by one person alone, but requires the participation of two, and the husband and wife of the guilty parties are each injured, as the guilty party not only injures his own spouse, but in the same measure injures the spouse of the other party to the crime, and we are of the opinion that the intent of the legislature was to provide for the commencement of the prosecution for this crime by either of the injured parties against either or both of the guilty ones. We are supported in this conclusion by what we consider the better reason, by authority, and by certain facts of history connected with this legislation, as well as by consideration of the whole of section 8903, supra. This provision is found in the statutes of Michigan, Minnesota, and Iowa, and has been passed upon by the courts of each of these states. It is held in Bayliss v. People, 46 Mich. 221, 9 N.W. 257 that the complaint may be made by the spouse of the party who is not being prosecuted; and in People v. Davis, 52 Mich. 569, 18 N.W. 362, the court states that it sees no reason to doubt the correctness of the decision in Bayliss v. People. It has been referred to and passed upon in other Michigan cases, which it is unnecessary to refer to. In State v. Brecht, 41 Minn. 50, 42 N.W. 602, the supreme court of Minnesota, in passing upon this provision, uses the following language: "It must be entirely apparent, the policy of the statute as to this offense being that, if the parties injured choose to acquiesce in the matter, where there...
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