State v. Bennett

Day, Oh. J.

— “ The husband or wife shall in no case be a witness for or against the other, except in a criminal pro *25 ceeding for a crime committed by one against tbe other.” Rev., § 3983. Is the adtdtery of the wife, in such sense, a crime committed against the husband, as to render him, under this section, a competent witness against her, in a criminal prosecution'for the offense ?. This question is one of first impression. Although many similar cases have been before this court, in which the testimony of the husband or wife was admitted, the competency of such testimony was always tacitly conceded.

The law so far regards the adultery of the wife as a crime against the husband, that, if he should discover her flagrcmte delicto, his homicide of her and her paramour would be lowered to the grade of manslaughter. The general sense of mankind, however, considers the crime of a more aggravated character. The history of judicial proceedings in this country, of late years, fails to furnish an instance in which a jury has found the homicide of the paramour of the wife guilty of any crime at all. And while this tendency upon the part of jurors to override the law cannot receive judicial sanction yet it furnishes convincing proof of the fact that the law does not punish the crime of adultery in a manner proportionate to the magnitude of the offense, and that a law, not in accord with the common feelings and sympathies of humanity, cannot be enforced. The Revision, section4347, which provides that no prosecution for adultery can be commenced but on complaint of the husband or wife, 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. The prosecution can be commenced only on complaint of the husband or wife. . The only mode of commencing the prosecution is by becoming a prosecuting witness before the grand jury, or by filing an information before a committing magistrate. When a preliminary in *26 formation is laid before a magistrate he must examine the informant or prosecutor, and any witness he may produce, and take their affidavits in writing, and cause each affidavit to be subscribed and sworn to before him, by the person making it. The affidavit must set forth the facts stated by the informant and his witnesses, tending to establish the commission of the offense, and the guilt of the person charged therewith. Rev., §§ 4531, 4532. The informant assumes the attitude of a witness whether he institute the prosecution before the grand jury or before a committing magistrate. The argument which, under section 3983, would deny the right of the husband to testify in this case, would also deny his right to commence the prosecution, either before a committing magistrate or the grand jury, and would prove too much. It has been held that an affidavit of a married woman might be read, on an application to the court of king’s bench for an information against her husband for attempt to take her away by force after articles of separation. In reference to this, Mr. Justice Bullek said “ it would be strange to permit her to be a witness to ground a prosecution, and not afterward to be a witness at the trial. 11 Bull. N. P. 287; 1 Phill. on Ev. 79.

In our opinion the witness was improperly excluded. As the defendant, being acquitted, cannot be again placed upon trial, we can do no more than express our conviction of the law.

Reversed