is

The controlling question whether an assault by a husband with intent to commit rape is within the exception to § 4606 of the Code, which permits one spouse to testify against the other "in a criminal prosecution for a crime committed one against the other." The conviction rests mainly upon permitting the wife of this appellant to testify against him on this trial on the charge of having committed such an assault, and of which he was convicted, and from which conviction he appeals.

Mr. D. G. Baker, for appellant:

An assault with intent to commit rape upon any woman is not a personal wrong or injury to the wife within the meaning of a statute making her a competent witness against her husband in a criminal prosecution therefor.

People v. Westbrook, 94 Mich. 629, 54 N. W. 468; 6 Enc. Ev. 890.

At the common law as applied prior to 1789, a wife was an incompetent witness for or against her husband, and this was so, not on account of the interest, but on the ground of public policy.

United States v. Gwynne, 209 Fed. 993; Cohen v. United States, 130 C. C. A. 417, 214 Fed. 29.

Unless the crime charged against the husband is one committed against the wife, the wife cannot be required to testify.

Meikle v. Hobson, 167 Iowa, 66, 149 N. W. 865.

If the crime of assault with intent to commit rape upon the child can in any sense be held to be a crime committed against the wife, the same was condoned.

State v. McKay, 122 Iowa, 658, 98 N. W. 510.

Messrs. H. M. Havner, Attorney General, and F. C. Davidson, Assistant Attorney General, for the State:

It was not improper for the state to call defendant's wife as a witness, and require her to testify against him.

United States v. Rispoli, 189 Fed. 271; People v. Quanstrom, 93 Mich. 254, 17 L.R.A. 723, 53 N. W. 165; State v. Chambers, 87 Iowa, 1, 43 Am. St. Rep. 349, 53 N. W. 1090; Compton v. State, 13 Tex. App. 271, 44 Am. Rep. 703; State v. Bennett, 31 Iowa, 24; State v. Hazen, 39 Iowa, 648; State v. Sloan, 55 Iowa, 217, 7 N. W. 516; State v. Hughes, 58 Iowa, 165, 11 N. W. 706; Molyneux v. Wilcockson, 157 Iowa, 39, 41 L.R.A. (N.S.) 1213, 137 N. W. 1016; State v. Shultz, 177 Iowa, 321, 158 N. W. 539.

Salinger, J., delivered the opinion of the court:

I. Section 4606 of the Code provides that "neither the husband nor wife shall in any case be a witness against the other, except in a criminal prosecution for a crime committed one against the other."

In State v. Chambers, 87 Iowa, 1, 43 Am. St. Rep. 349, 53 N. W. 1090, and State v. Shultz, 177 Iowa, 327, 158 N. W. 539, we held that the testimony was receivable on a prosecution for incest. In State v. Bennett, 31 Iowa, 24, and State v. Hazen, 39 Iowa, 648, on charge of adultery, and in State v. Sloan, 55 Iowa, 217, 7 N. W. 516, and State v. Hughes, 58 Iowa, 165, 11 N. W. 706, that it was competent on a prosecution for bigamy. The state urges that the reason underlying the holding in said cases sustains permitting the wife to testify

against the husband on the prosecution for assault with intent to rape at bar. If the reception of this testimony was proper, it must be because the reason of said decisions justifies it. It is no justification that an instruction limited the application of the testimony of the wife to the charge being tried. On the contrary, if the testimony was incompetent, such instruction was injurious, because the charge emphasized that such testimony was permissible on a prosecution for assault with intent to commit rape.

In People v. Westbrook, 94 Mich. 629, 54 N. W. 486, it is held that an indecent assault by a husband on his nine-year-old daughter fails to make the wife a competent witness against the husband, because such assault is not a "personal" wrong or injury to the wife. The state differentiates this with the argument that the Michigan statute is unlike our own, in that it prohibits receiving such testimony except where the action "grows out of a personal wrong or injury done by one to the other." We are not prepared to say there is any substantial difference in the statute; for, while a crime committed against the other may possibly include more than a personal wrong committed by one against the other, of necessity it includes such wrong. In other words, while a crime committed by husband against wife cannot be more than a personal wrong committed against her by him, such crime is at least as much as that. But suppose that to now it has never been held that the wife may not testify on a prosecution of the husband for assault with intent to rape. There must be a first time for right and reasonable decisions. For that matter, it may be said that no decision that the testimony here is receivable has ever been made, unless holding such testimony is proper on prosecutions for incest, for incest, adultery, or bigamy settles that it is proper on a charge of assault with intent to rape. Of course, adultery by the husband is a crime

against the wife, and of necessity incest and bigamy include adultery. That fact alone is a sufficient reason why holding that adultery, bigamy, and incest are within the exception is no warrant for holding that an intent to commit which, if consummated, would involve adultery, brings the case within this exception. How can it in reason be said that a naked intent to ravish a third person is "a crime committed against" the wife. The state concedes the exception applies to nothing but sexual crimes. How can it be maintained that an unaccomplished intent to rape is a "sexual" crime. It is entitled to some consideration that the prohibition of and punishment for the crime of rape and that of intent to commit rape are grouped in the statute with murder, and under the general classification of "Offenses against Lives and Persons," while adultery, bigamy, and incest are found in another chapter and classified as "Offenses against Chastity, Morality, and Decency." We do not hold this to be controlling; but, without it, it seems to us the ruling complained of cannot be sustained unless this court, in reviewing a conviction for a statute crime, becomes an ecclesiastical court and must give liberal application to the words of Holy Writ: "That the man who looketh upon a woman and lusteth after her has already committed adultery in his heart."

Such argument can easily be carried too far. If the intent with force or otherwise to obtain illicit sexual connection is the equivalent of the accomplished act, then a divorce should be obtainable, because the defendant intended to commit adultery. If the words "prosecution for a crime committed against the other" apply to a prosecution for assault with intent to commit rape, it must be because the words of the exception should be read, "a prosecution for an act which is in any way offensive or injurious to the other." If that be the true interpretation, then if the husband

commit murder the wife may testify against him. Surely, it must deeply shock, hurt, offend, and, in a sense, injure any good woman to find herself married to a murderer. It is sufficiently indicated in our own decisions that this is not the correct construction of the statute words, because, for one thing, we held in Molyneux v. Wilcockson, 157 Iowa, 39, 41 L.R.A. (N.S.) 1213, 137 N. W. 1016, that the husband's forging the name of the wife did not bring the prosecution within the statute exception.

Witness-wife

-assault to rape.

We are of opinion that the statute exception against husband does not apply to prosecution for assault with intent to commit rape. II. The point is made that at all events the wife of the defendant was not a competent witness because the evidence shows she had condoned the offense of her husband, if it be assumed that the assault for which he was prosecuted

was such offense. In view of the conclusion reached, it is unnecessary to pass upon this assignment.

III. In instructions 5 and 8 it is said, in effect, to be no defense that "defendant expected to accomplish

Criminal lawinstructionsufficiency.

his purpose without opposition on the part of the prosecutrix." It is urged in the exceptions as to this instruction that this left the jury to conclude that

defendant might be convicted if he, at the time of the assault on trial, "expected to have at any future time sexual intercourse with the prosecutrix with opposition," and that the instruction erred for not confining the expectation to have sexual intercourse "to then and there at the time of the assault." Further, that the charge was too indefinite "as to time and place as to when the said defendant expected to accomplish such purpose." our opinion these complaints are hypercritical.

In

IV. A motion to direct verdict for defendant has seven grounds. Motion in arrest of judgment has nineteen grounds.

There are four exceptions to the instructions, and some of these are so subdivided as to amount to a distinct exception. The appellant's brief urges that it was error to overrule the motion

to direct and the

Appealassignment of error sufficiency.

motion in arrest of judgment, and to overrule the exceptions for each and all of the reasons stated in the exceptions. These are all too general to entitle appellant to review.

For the error in permitting the wife of defendant to testify against him, the judgment must be reversed, and the cause remanded.

Preston, Ch. J., and Ladd and Evans, JJ., concur.

I. In general, 1069.

II. Adultery, 1070.

III. Rape and indecent assault, 1071.

1. In general.

There is a decided conflict of authority as to whether or not the statutes permitting one spouse to testify against the other in criminal proceedings for an offense committed by one against the other apply to sexual offenses such

IV. Incest, 1071.

V. Bigamy and polygamy, 1072. VI. Intent to commit sexual offense, 1073.

as adultery, indecent assault, rape, incest, bigamy, etc., with or against third persons. The courts of a number of jurisdictions maintain that such statutes do not change the common-law rule that a husband or wife cannot testify against the other except in case

of personal violence, and that a sexual offense with or against a third person is not a crime against the unoffending spouse within the meaning of such statutes; and the courts of other jurisdictions maintain with equal certainty that similar, and often identical, statutory provisions, extend the exception so as to permit one spouse to testify against the other in cases of the character under consideration.

To illustrate without reference to the nature of the specific crime charged, the following cases adhere to the theory that statutes permitting one spouse to testify against the other for offenses against the former permit the giving of such testimony in prosecutions for sexual offenses with or against third persons: Schell v. People (1918) Colo., L.R.A.1918F, 954, 173 Pac. 1141; State v. Bennett (1870) 31 Iowa, 24; State v. Hazen (1874) 39 Iowa, 648; State v. Sloan (1880) 55 Iowa, 217, 7 N. W. 516; State v. Hughes (1882) 58 Iowa, 165, 11 N. W. 706; State v. Chambers (1893) 87 Iowa, 1, 43 Am. St. Rep. 349, 53 N. W. 1090; State v. Shultz (1916) 177 Iowa, 321, 158 N. W. 539; Lord v. State (1886) 17 Neb. 526, 23 N. W. 507, 6 Am. Crim. Rep. 17; Hills v. State (1901) 61 Neb. 589, 57 L.R.A. 155, 85 N. W. 836; Heacock v. State (1911) 4 Okla. Crim. Rep. 606, 112 Pac. 949; Kitchens v. State (1914) 10 Okla. Crim. Rep. 603, 140 Pac. 619; United States v. Orosa (1906) 7 Philippine, 247. And see United States v. Cutler (1888) 5 Utah, 608, 19 Pac. 145, as cited infra, V.

And the following cases lay down a contrary doctrine: Bassett v. United States (1890) 137 U. S. 496, 34 L. ed. 762, 11 Sup. Ct. Rep. 165, reversing (1887) 5 Utah, 131, 13 Pac. 237; People v. Quanstrom (1892) 93 Mich. 254, 17 L.R.A. 723, 53 N. W. 165; People v. Westbrook (1893) 94 Mich. 629, 54 N. W. 486; State v. Armstrong (1860) 4 Minn. 335, Gil. 251; State v. Lasher (1913) 131 Minn. 97, 154 N. W. 735; State v. Burt (1903) 17 S. D. 7, 62 L.R.A. 172, 106 Am. St. Rep. 759, 94 N. W. 409; Compton v. State (1882) 13 Tex. App. 271, 44 Am. Rep. 703, expressly overruling Roland V. State (1880) 9 Tex. App. 277, 35 Am. Rep.

743, and Morrill v. State (1879) 5 Tex. App. 447; Thomas v. State (1883) 14 Tex. App. 72; McLean v. State (1894) 32 Tex. Crim. Rep. 521, 24 S. W. 898; Brock v. State (1902) 44 Tex. Crim. Rep. 335, 60 L.R.A. 465, 100 Am. St. Rep. 859, 71 S. W. 20; Harville v. State (1908) 54 Tex. Crim. Rep. 426, 113 S. W. 285; Knapp v. State (1908) 54 Tex. Crim. Rep. 633, 130 Am. St. Rep. 903, 114 S. W. 836; Bryan v. State (1908) 55 Tex. Crim. Rep. 136, 114 S. W. 811; Sargent v. State (1910) 61 Tex. Crim. Rep. 34, 133 S. W. 885; Vickers v. State (1912) 69 Tex. Crim. Rep. 628, 154 S. W. 578; State v. Kniffen (1906) 44 Wash. 485, 120 Am. St. Rep. 1009, 87 Pac. 837, 12 Ann. Cas. 113; State v. Beltner (1910) 60 Wash. 397, 111 Pac. 344.

For a more detailed exposition of these statutes and cases, see the following subdivisions of this annotation.

II. Adultery.

In Iowa, Nebraska, and Oklahoma, adultery by one spouse is a crime against the other spouse within the meaning of a statute rendering husbands and wives competent witnesses against each other in prosecutions for crimes committed by one against the other. State v. Bennett (1870) 31 Iowa, 24; State v. Hazen (1874) 39 Iowa, 648; Lord v. State (1885) 17 Neb. 526, 23 N. W. 507, 6 Am. Crim. Rep. 17; Hills v. State (1901) 61 Neb. 589, 57 L.R.A. 155, 85 N. W. 836 (dictum); Heacock v. State (1911) 4 Okla. Crim. Rep. 606, 112 Pac. 949; Kitchens v. State (1914) 10 Okla. Crim. Rep. 603, 140 Pac. 619 (holding that while adultery is a public offense under the Oklahoma statutes, it is also a personal offense against the injured husband or wife, so that either becomes a competent witness to prove the offense). And see State v. Russell (1894) 90 Iowa, 569, 28 L.R.A. 195, 58 N. W. 915. In Iowa it has been said that the fact that the statutes also provide 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 unoffending spouse than against society in general. State v. Bennett (1870) 31 Iowa, 24. And in the Oklahoma case

of Heacock v. State (1911) 4 Okla. Crim. Rep. 606, 112 Pac. 949, the court said that the statute preventing anyone except a husband or wife from commencing a prosecution for adultery "clearly makes adultery a personal offense against the injured husband or wife," and continued as follows: "If it is not a personal offense, what character of an offense is it? The law has not made it only a public offense, because the public officers are prohibited from prosecuting it unless the prosecution is commenced and carried on by the injured husband or wife. How could a husband or wife commence and carry on a prosecution unless he or she could testify in support of such prosecution?"

On the other hand, in Minnesota and Texas it has been held that a statute permitting one spouse to testify against the other "in a criminal action or proceeding for a crime committed by one against the other" does not apply to the prosecution of a husband for adultery, so as to permit the wife to testify against him, even though the statutes also provide that "no prosecution for adultery shall be commenced except on the complaint of the husband or the wife." State v. Armstrong (1860) 4 Minn. 335, Gil. 251; State v. Lasher (1915) 131 Minn. 97, 154 N. W. 735; Compton v. State (1882) 13 Tex. App. 271, 44 Am. Rep. 703 (an incest case which expressly overruled Roland v. State (1880) 9 Tex. App. 277, 35 Am. Rep. 743, and Morrill v. State (1879) 5 Tex. App. 447, both of which were adultery cases); Thomas V. State (1883) 14 Tex. App. 72; McLean v. State (1894) 32 Tex. Crim. Rep. 521, 24 S. W. 898; Sargent v. State (1910) 61 Tex. Crim. Rep. 34, 133 S. W. 885.

In this connection the court in the Armstrong Case argued as follows: "We think in limiting the prosecution of the crime of adultery to cases in which the complaint should be made by the husband or wife, the legislature meant only to say that it was a crime which, if the parties immediately interested did not feel sufficiently injured by it to institute proceedings against the offender, the public would not notice it. It does not follow that because

the prosecution of a case depends upon the complaint of a particular person, that therefore that person must be the complaining witness." And to the effect that adultery is not a crime against the wife, see the dicta in Eassett v. United States (1890) 137 U. S. 496, 34 L. ed. 762, 11 Sup. Ct. Rep. 165, which is quoted infra, V. And see also United States v. Meyers (1908) 14 N. M. 522, 99 Pac. 336.

III. Rape and indecent assault. In Brock v. State (1902) 44 Tex. Crim. Rep. 335, 60 L.R.A. 465, 100 Am. St. Rep. 859, 71 S. W. 20, it was held that a statute providing that a wife cannot testify against her husband except in a criminal prosecution for an offense committed by him against her did not render the wife a competent witness against her husband in a prosecution for rape committed by him upon his stepdaughter, the court maintaining that the statute related only to offenses against the wife personally, and that offenses against the daughter were not offenses against the wife.

And in People v. Westbrook (1893) 94 Mich. 629, 54 N. W. 486, it was held that an indecent assault upon the defendant's daughter was not a "personal wrong or injury" done to the defendant's wife, so as to render her competent to testify against him on his trial for the offense, under a statute permitting a wife to testify against her husband in cases growing out of a "personal wrong or injury" done by him to her. It will be noted that the statute here expressly applies to personal wrongs or injuries.

And see also the reported case (STATE V. WILCOX, ante, 1066), as discussed infra, VI.

IV. Incest,

Under statutes which make husbands and wives competent witnesses against each other, and which apply generally to all crimes committed by one spouse against the other, it has been held that the true rule is that incest is a crime against the innocent spouse in such a sense as to make him or her a competent witness against the other spouse in a prosecution for such an offense. State v. Chambers (1893) 87 Iowa, 1,