The State v. Armstrong

• Decision Date: 01 January 1860
• Citation: 4 Minn. 251
• Parties: STATE OF MINNESOTA vs. WILLIAM D. ARMSTRONG.
• Court: Minnesota Supreme Court

4 Minn. 251

(4 Minn. R. p. 335.)

STATE OF MINNESOTA vs. WILLIAM D. ARMSTRONG.

Supreme Court of Minnesota.

Certified up by district court, Hennepin County.

Indictment for adultery alleged to have been committed with R. K., an unmarried woman. Defendant was convicted below.

Points and authorities for the State: —

1. The facts set forth in the indictment constitute the crime of adultery. Commonwealth v. Call, 21 Pick. 510; Commonwealth v. Reardon, 6 Cush. 78; State v. Hutchinson, 36 Me. 263.

2. The ruling of the court in allowing the prosecutrix in this action to testify without the consent of her husband, the defendant, was correct: First, because it is a crime committed by the husband against the wife. Comp. Stat. 681, § 53. Second, no indictment could be found by the grand jury except upon the complaint of the prosecutrix, and her testimony before them. Comp. Stat. 728, § 1. Third, and no evidence can be received before the grand jury except such as would be allowed on trial. Comp. Stat. 752, §§ 35, 36.

Points and authorities for defendant. In this case several questions arise: —

First, the facts set forth in the indictment and proven on the trial, do not constitute the crime of adultery within our statute, and the court erred in instructing the jury that such facts constituted the crime of adultery. Our statute does not define the crime of adultery, and we must look to the common law and contemporaneous construction of other states for such definition. Noah Webster defines it as a "violation of the marriage bed; a crime of civil injury, which introduces, or may introduce, into the family a spurious offspring," and states that in Connecticut the sexual intercourse of any man with a married woman is the crime of adultery in both, but such intercourse of a married man with an unmarried woman is fornication in both, though it is adultery in the man within the law respecting divorce, but not a criminal adultery. The same is the rule in New Hampshire. State v. Wallace, 9 N. H. 515. So also in Vermont. State v. Way, 6 Vt. 311. So in Indiana. State v. Pearce, 2 Blackf. 318. And such is laid down as the general rule in 3 Archibald's Crim. Pl., with Waterman's notes, 615, note, where the subject is elaborately discussed. In some of the states, if either of the parties be unmarried, it is holden not to constitute adultery. Respublica v. Roberts, 2 Dall. 124. But, without the aid of contemporaneous adjudication, it is clear, from the context of our statute alone, that the sexual intercourse of a married man with an unmarried woman is not adultery. For it provides specially that when the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery, while it makes no provision that such intercourse between a married man and an unmarried woman shall be so considered. On the contrary, such an offense is evidently made fornication by the fifth section of the same chapter (Pub. Stat. 729, ch. 96), which provides: "If any man shall commit fornication with any single woman, each shall be punished," &c. Placing the two sections together, the conclusion is irresistible, that the illicit connection between a married man and a single woman is fornication — not adultery. In its effects on families and society, it is no worse, and very much less injurious in its consequences, than the corruption of a wife. 3 Arch. Crim. Pl. 615, note cited above, and cases there cited. Second, the court erred in admitting the testimony of Louisa S. Armstrong, the wife of defendant.

Our statute provides that neither husband nor wife can be examined in any civil or criminal action for or against the other, without consent of that other — excepting civil actions or proceedings by one against the other, and criminal actions for a crime committed by one against the other. Pub. Stat. 681. This statute evidently makes but two changes in the common law rule: (1.) — Allowing the husband or wife to be examined by the consent of the other, which was not before permitted. 1 Greenl. Ev. § 340. (2.) — Allowing them to testify in civil suits or proceedings by one against the other, where, without our statute, they would be excluded on the ground of interest in the event. But the court decided that adultery in the husband was a crime against the wife within the meaning of the statute. It is, however, clear that that clause was simply intended to preserve an old rule of evidence, which would otherwise be swept away by the general terms of the section. It clearly relates to forcible injuries committed by one against the other; as, assault and battery, malicious wounding, forcible abduction, rape, &c. and in all these cases, at common law, the party injured was a competent witness. 1 Greenl. Ev. § 343 et seq.; Starkie Ev. Part 4, p. 713. But, in no case, is adultery or crim. con. treated as a crime by one against the other. Indeed, it is not a crime at all at common law — but in the nature of a trespass, damages being recoverable of the wrong doer. Nor does the clause which forbids prosecution for the crime, except on complaint of the husband or wife, make either of them competent witnesses on the trial of such cause; because the making a complaint to the grand jury does not imply any such right. The party states the offense, and names the witnesses to be summoned to be examined. Nor does the section purport to give them competency as witnesses. Statutes should not be tortured in derogation of common law. Third, the court erred further in allowing the testimony of Louisa S. Armstrong to prove the fact of the marriage; it was not the best evidence of that fact. Also, in allowing any evidence of the ceremony without proving that Cummings was a justice of the peace. The evidence was only that he had acted as such in that one instance, which was not such a continual and notorious exercise of the functions of the office as to raise any presumption of his official character. 1 Greenl. Ev. §§ 83 and 92. Fourth, the court also erred in allowing the statutes of New York, revised in 1852, to be read to the jury as evidence of the law in 1845. No presumption arises that it was the same; presumptions of that kind are not retrospective. Also, in allowing the testimony of W. H. Peckham to show that the law was unaltered. The statute of our state provides how the statute law of other states may be proven; it can be proven in no other way. Pub. Stat. 682, ch. 84, § 56. In cases of adultery, bigamy, &c., it is essential that a valid marriage at the place where it is consummated, be proven. Morris v. Miller, 4 Burr. 2057; Birt v. Barlow, 1 Douglas, 170; State v. Palmer, 18 Vt. 570; People v. Humphrey, 7 Johns. 314. The court, therefore, erred, in admitting in evidence the entry in the Bible, and in charging the jury that they were to consider it as evidence, it being at most but an admission of defendant. Also, in charging the jury that by the laws of New York no ceremony was necessary, such not being the fact. Rev. Stat. of New York of 1830, title, Marriage. And further, that whether such was the law of New York or not, was a question of fact. Woodbridge v. Austin, 2 Tyler, 367; Packard v. Hill, 2 Wend. 411; Chanoine v. Fowler, 3 Wend. 173; Lincoln v. Battelle, 6 Wend. 475; Mason v. Wash, 1 Ill. 39; Haven v. Foster, 9 Pick. 112; Stephenson v. Bannister, 3 Bibb. 369; Ripple v. Ripple, 1 Rawle, 386; Peck v. Hibbard, 26 Vt. 698; Monroe v. Douglass, 5 N. Y. 447.

By our statute, juries are exclusive judges of all matters of facts.

Ashley C. Morrill, for State.

Wm. Lochren, for defendant.

FLANDRAU, J.

I will notice the objections briefly in the order in which they were made by the counsel for the prisoner on the trial. Although the statutes of this state confer upon the courts the somewhat extraordinary power of amending an indictment upon demurrer, yet it comes with the qualification that it is only in those cases in which "the defendant will not be unjustly prejudiced thereby," that it can be properly exercised. Comp. Stat. 765, § 7. By reference to the same statutes on page 701, it will be found that the defendant can only "be held to answer" for the offense of adultery "on the presentment or indictment of a grand jury." It is quite clear that the indictment, as it came from the grand jury, failed in a very essential particular in making any charge against the defendant, that he could be tried upon, as it did not show that the crime was committed within the jurisdiction of the court. To supply an averment by amendment, which is necessary to perfect the charge, is in effect to "hold the defendant to answer for a criminal offense" in a manner, other than "on the indictment of a grand jury," and is, in a high degree, unjustly prejudicial to his rights as a citizen. Courts are bound to give effect to statutes if possible, and this one, allowing an indictment to be amended, may be satisfied by permitting it to operate upon mere matters of form; as, for instance, the date or place of the finding, or the court in which found, if omitted, might be supplied by amendment when actually within the knowledge of the court; but matters of substance can never be inserted in an indictment as the statutes now stand, by any other tribunal than the grand jury.

After the indictment was amended by the court, it still...