WITNESS-WIFE AGAINST HUSBAND.-A PROSECUTION AGAINST A HUSBAND FOR INCEST is a criminal proceeding for a crime committed against his wife, and she is therefore a competent witness against him under a statute declaring that neither a husband nor wife shall be a witness against the other except in a criminal prosecution for a crime com. mitted by one against the other.

INCEST AND RAPE.-One accused of incest cannot escape conviction on the ground that the female upon whom the crime was committed did not consent thereto, or was of such an age that she was not at the time capable of giving her consent. That the act so committed also constitutes the crime of rape does not prevent it from constituting the crime of incest.

Charles W. Kepler, for the appellant.

John Y. Stone, attorney general, for the state.

2 GIVEN, J. 1. The appellant was charged with the crime of incest before a justice of the peace, and on April 6, 1891, he waived examination, and gave bond to appear and answer before the grand jury. The district court being then in session, the grand jury returned an indictment on April 11, 1891, against the defendant, charging him with the same act of incest. The appellant moved to quash the indictment for the reason that no opportunity was given him to challenge the grand jury, and because the grand jury had no right to take jurisdiction of the case. It does not appear from the record whether the defendant was held to answer at the term of court then in session or at the next term; but as the magistrate was not required to make return to the district

court until "on or before its opening, on the first day of the next term thereof," we must presume that he was held to appear at the next term. We must also presume that the magistrate did not make his return to the term then in session. From this record we conclude that the grand jury did not act upon a return from the magistrate, but took the case as though there had been no preliminary hearing. The fact that the appellant had been held to appear at a future term did not divest the grand jury of jurisdiction to examine the case upon its own motion. Having this jurisdiction, and having so examined the case, and returned the indictment, the appellant had no right to challenge the grand jury.

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2. Salina Chambers was called and sworn as a witness on behalf of the state, and having testified that she was the wife of the defendant, "the defendant now objects to the competency of this witness to testify in this case," which objection was overruled. The wife having testified to her marriage to the defendant, to improper conduct of his toward Sarah D. Cowden, and to what was said between the witness and the defendant at the time, the defendant moved to strike out all her testimony, "because she is the wife of the defendant, and is incompetent to testify against him." This motion was overruled. It will be noticed that the objection and motion were solely upon the ground of incompetency of the witness, and the contention is that this is a criminal prosecution for a crime committed against the wife. Section 3636 of our code provides as follows: "Every human being with sufficient capacity to understand the obligation of an oath is a competent witness in all cases, both civil and crim inal, except as herein otherwise provided." The exception declared is found in section 3641, as follows: "Neither the husband nor wife shall, in any case, be a witness against the other, except in a criminal proceeding for a crime committed by one against the other, or in a civil action or proceeding, one against the other; but they may, in all civil and criminal cases, be witnesses for each other."

In State v. Bennett, 31 Iowa, 24, a prosecution against the wife for adultery, it was held that the husband was a competent witness against his wife: See, also, State v. Hazen, 39 Iowa, 648. In State v. Sloan, 55 Iowa, 217, it was held that on the trial of the husband for bigamy his legal wife was a competent witness in behalf of the state. The court says: "In our opinion, if the defendant is guilty of bigamy, he com

mitted a crime against his wife. We think she was a competent witness": See, also, State v. Hughes, 58 Iowa, 165.

In People v. Quanstrom, 93 Mich. 254, the supreme court of Michigan holds, under the Michigan statute, that "bigamy on the part of the husband is not such a personal wrong or injury to the wife as to allow her to testify against the hus band." Section 7546 of that statute is a follows: "A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other." In Bassett v. United States, 137 U. S. 496, a prosecution for polygamy, it was held, under the Code of Criminal Procedure of Utah, that the offense charged was not such a wrong against the wife as to render her testimony admissible. The exception contained in that code is where the testimony is given with the consent of both, or "in cases of criminal violence upon one by the other." It will be noticed that the exceptions in these statutes apply to personal wrong or injury, while under ours they apply to "all criminal prosecution 5 for a crime committed one against the other." There are many crimes other than against the person which one may commit against another.

Compton v. State, 13 Tex. App. 271, 44 Am. Rep. 703, is a case identical with this. That was a charge of incest against the husband with the daughter of his wife, and the competency of the wife to testify was raised, under a statute the same as ours. The court held that she was not a competent witness against her husband, overruling Morrill v. State, 5 Tex. App. 447; Roland v. State, 9 Tex. App. 277; 35 Am. Rep. 743. It is the fact of the marital relation that makes the acts here charged constitute the aggravated crime of incest. Were it not for this relation, these acts would constitute a much less grave offense. The crime charged is surely as much, if not more, a crime against the wife of the accused, than would be the crime of adultery or bigamy. Following former decisions of this court, we hold that this is a prosecution for a crime committed by the defendant against his wife, within the meaning of section 3641, and that Mrs. Chambers was a competent witness for the state.

Counsel for the appellant, in argument, called attention to section 3642 of the code, providing that neither husband nor wife can be examined in any case as to any communication

made by the one to the other while married. The record fails to show that any objection was made on the trial, based upon this statute. As already stated, the objections were grounded solely upon the claim that the witness was incompetent. It does not appear from the record that the witness was called upon to testify to any communication made to her by her husband, within the meaning of the section referred to. The rule of this section, in its spirit and extent, is analogous to that which excludes confidential communications: 1 Greenleaf on Evidence, sec. 338. There was no error in permitting Mrs. Chambers to testify, nor in refusing to strike the testimony which she had given.

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3. The appellant asked the following instructions, which were refused, and of which refusal he complains:

"2. The crime of incest can only be committed by the mutual acts of the parties, and both parties are equally guilty, under the facts pleaded in the indictment; and hence, in this case, if you find from the evidence of the prosecutrix, Sarah D. Cowden, that she and the defendant had sexual intercourse, then, in law, she was an accessary and accomplice with the defendant to the crime charged in the indictment, and you cannot convict on her testimony alone, but she must be corroborated by other witnesses, tending to connect the defendant with the crime charged."

“4. In order to constitute the crime of incest the defendant and the prosecutrix, Sarah D. Cowden, must have mutually agreed to have, and did have, actual copulation; and, unless the evidence satisfies you of this fact beyond a reasonable doubt, you should acquit the defendant."

Code, section 4559, is as follows: "A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense, or the circumstances thereof." The appellant contends "that both parties must mutually agree to have sexual intercourse, and have actual copulation, before the crime of incest is committed"; that, if consent on the part of the female is wanting, it is not incest, and if she consents she is an accomplice, and must be corroborated, as provided in section 4559. In State v. Sanders, 30 Iowa, 582, the defendant was charged with adultery, and the woman with whom it was charged he committed the crime testified that the act

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was committed by the defendant forcibly, and against her will. The defendant asked an instruction to the effect that such evidence was not sufficient to sustain the indictment; that it would prove a rape, but is not enough to convict for adultery. This court says: "In order to constitute the crime of adultery the act must be willingly done. This condition is an essential ingredient in this as in all other crimes. But it is to be applied to the party who commits the offense, and not the one with whom or against whom it is done. The defendant's guilt does not depend upon the guilt or innocence of Elmyra Wyman. If, for certain reasons, she may not be guilty, it does not change the character of the act, so far as he is concerned. On his part, it was willingly done; and it is, therefore, within the definition the law gives of the offense. It may appear that the act was so far without the woman's consent as to amount to rape; yet, as to defendant, it was an unlawful carnal connection, and willingly done on his part, which, with the fact of marriage, constitutes the crime of adultery, and the defendant may be convicted therefor." The instruction was held to be properly refused. This was followed in State v. Donovan, 61 Iowa, 279: See, also, Commonwealth v. Bakeman, 131 Mass. 577; 41 Am. Rep. 248. Guilt may exist, and is none the less enormous, because the act was without the consent of the female. To hold otherwise is to say that the crime of incest cannot be committed with one who, from infancy or other cause, is incapable of consenting to the act. Sarah D. Cowden was but little over thirteen at the time this crime is charged to have been committed; and, although it does not appear that she resisted the approaches of her stepfather, it can hardly be said that she so consented as to become his accomplice in the commission of the crime. State v. Miller, 65 Iowa, 60, is relied upon by the appellant. The question there determined was the sufficiency of the evidence. The question whether, in such cases, each party is an accomplice to the other, so that section 4559 applies, was not before the court. We think the instructions were properly refused.

We find no errors in the record, and the judgment of the district court is therefore affirmed.

WITNESSES-WIFE AGAINST HUSBAND.-A wife is competent to testify against her husband in a criminal action whenever she is the individual particularly and directly injured or affected by the crime for which he is AM. ST. REP., VOL. XLII. — 28