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1- lura, -, 169 N. W. 646.) sition on the part of prosecutrix is not Appeal assignment of error suf. erroneous because leading the jury to ficiency. conclude that accused might be con

3. An allegation of error in overvicted if he, at the time of the assault,

ruling a motion to direct a verdict and expected to have at any future time

a motion in arrest of judgment, and

in overruling the exceptions for each intercourse with prosecutrix with op

and all the reasons stated in the exposition, or in being too indefinite as to

ceptions, is too general to raise any the time and place when accused ex

question for review on appeal. pected to accomplish his purpose.

[See 2 R. C. L. 161.]

APPEAL by defendant from a judgment of the District Court for Boone County convicting him of assault with intent to commit rape. Reversed. Statement by Salinger, J.:

State v. McKay, 122 Iowa, 658, 98 The controlling question is N. W. 510. whether an assault by a husband

Messrs. H. M. Havner, Attorney with intent to commit rape is with

General, and F. C. Davidson, Assistant in the exception to $ 4606 of the

Attorney General, for the State: Code, which permits one spouse to

It was not improper for the state to

call defendant's wife as a witness, and testify against the other “in a crim- require her to testify against him. inal prosecution for a crime com- United States v. Rispoli, 189 Fed. mitted one against the other.” The 271; People v. Quanstrom, 93 Mich. conviction rests mainly upon per- 254, 17 L.R.A. 723, 53 N. W. 165; State mitting the wife of this appellant v. Chambers, 87 Iowa, 1, 43 Am. St. to testify against him on this trial Rep. 349, 53 N. W. 1090; Compton v. on the charge of having committed

State, 13 Tex. App. 271, 44 Am. Rep.

703; State v. Bennett, 31 Iowa, 24; such an assault, and of which he

State v. Hazen, 39 Iowa, 648; State was convicted, and from which con

v. Sloan, 55 Iowa, 217, 7 N. W. 516; viction he appeals.

State v. Hughes, 58 Iowa, 165, 11 N. Mr. D. G. Baker, for appellant:

W. 706; Molyneux v. Wilcockson, 157 An assault with intent to commit

Iowa, 39, 41 L.R.A.(N.S.) 1213, 137 rape upon any woman is not a personal 321, 158 N.'W. 539.

N. W. 1016; State v. Shultz, 177 Iowa, wrong or injury to the wife within the meaning of a statute making her a Salinger, J., delivered the opinion competent witness against her hus- of the court:

1 band in a criminal prosecution there

I. Section 4606 of the Code profor.

vides that "neither the husband nor People v. Westbrook, 94 Mich. 629, 54 N. W. 468; 6 Enc. Ev. 890.

wife shall in any case be a witness At the common law as applied prior against the other, except in a crimito 1789, a wife was an incompetent

nal prosecution for a crime comwitness for or against her husband,

mitted one against the other." and this was so, not on account of the

In State v. Chambers, 87 Iowa, 1, interest, but on the ground of public 43 Am. St. Rep. 349, 53 N. W. 1090, policy.

and State v. Shultz, 177 Iowa, 327, United States v. Gwynne, 209 Fed. 158 N. W. 539, we held that the 993; Cohen v. United States, 130 C. C. testimony was receivable

on a A. 417, 214 Fed. 29.

prosecution for incest. In State v. Unless the crime charged against the

Bennett, 31 Iowa, 24, and State v. husband is 'one committed against the

Hazen, 39 Iowa, 648, on charge of wife, the wife cannot be required to

adultery, and in State v. Sloan, 55 testify.

Iowa, 217, 7 N. W. 516, and State v. Meikle v. Hobson, 167 Iowa, 66, 149 N. W. 865.

Hughes, 58 Iowa, 165, 11 N. W. If the crime of assault with intent

706, that it was competent on a to commit rape upon the child can in

prosecution for bigamy. The state any sense be held to be a crime com- urges that the reason underlying mitted against the wife, the same was the holding in said cases sustains condoned.

permitting the wife to testify

against the husband on the prosecu- against the wife, and of necessity tion for assault with intent to rape incest and bigamy include adultery. at bar. If the reception of this That fact alone is a sufficient reason testimony was proper, it must be why holding that adultery, bigamy, because the reason of said decisions and incest are within the exception justifies it. It is no justification is no warrant for holding that an that an instruction limited the ap- intent to commit which, if consumplication of the testimony of the mated, would involve adultery, wife to the charge being tried. On brings the case within this excepthe contrary, if the testimony was tion. How can it in reason be said incompetent, such instruction was that a naked intent to ravish a third injurious, because the charge em- person is "a crime committed phasized that such testimony was against the wife. The state conpermissible on a prosecution for cedes the exception applies to nothassault with intent to commit rape. ing but sexual crimes. How can it

In People v. Westbrook, 94 Mich. be maintained that an unaccom629, 54 N. W. 486, it is held that an plished intent to rape is a "sexual" indecent assault by a husband on crime. It is entitled to some considhis nine-year-old daughter fails to eration that the prohibition of and make the wife a competent witness punishment for the crime of rape against the husband, because such and that of intent to commit rape assault is not a "personal" wrong or are grouped in the statute with injury to the wife. The state dif- murder, and under the general ferentiates this with the argument classification of “Offenses against that the Michigan statute is unlike Lives and Persons," while adultery, our own, in that it prohibits receiv- bigamy, and incest are found in ing such testimony except where another chapter and classified as the action "grows out of a personal "Offenses against Chastity, Moralwrong or injury done by one to the ity, and Decency.” We do not hold other." We are not prepared to say this to be controlling; but, without there is any substantial difference it, it seems to us the ruling comin the statute; for, while a crime plained of cannot be sustained uncommitted against the other may less this court, in reviewing a possibly include more than a per- conviction for a statute crime, besonal wrong committed by one comes an ecclesiastical court and against the other, of necessity it in- must give liberal application to the cludes such wrong. In other words, words of Holy Writ: “That the while a crime committed by hus- man who looketh upon a woman band against wife cannot be more and lusteth after her has already than a personal wrong committed committed adultery in his heart." against her by him, such crime is at Such argument can easily be carleast as much as that. But suppose ried too far. If the intent with that to now it has never been held force or otherwise to obtain illicit that the wife may not testify on a

sexual connection is the equivalent prosecution of the husband for as- of the accomplished act, then a disault with intent to rape. There vorce should be obtainable, because must be a first time for right and the defendant intended to commit reasonable decisions. For that adultery. If the words "prosecumatter, it may be said that no de- tion for a crime committed against cision that the testimony here is

the other" apply to a prosecution receivable has ever been made, un- for assault with intent to commit less holding such testimony is prop- rape, it must be because the words er prosecutions for

incest, of the exception should be read, “a adultery, or bigamy settles that it prosecution for an act which is in is proper on a charge of assault any way offensive or injurious to with intent to rape.

Of course,

the other.” If that be the true inadultery by the husband is a crime terpretation, then if the husband


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(- Iowa, -, 169 N. W. 616.) commit murder the wife may testify defendant might be convicted if he, against him. Surely, it must deeply at the time of the assault on trial, shock, hurt, offend, and, in a sense, "expected to have at any future injure any good woman to find her- time sexual intercourse with the self married to a murderer. It is prosecutrix with opposition,” and sufficiently indicated in our own de- that the instruction erred for ‘not cisions that this is not the correct

confining the expectation to have construction of the statute words, sexual intercourse

sexual intercourse "to then and because, for one thing, we held in

there at the time of the assault." Molyneux v. Wilcockson, 157 Iowa,

Further, that the charge was too in39, 41 L.R.A.(N.S.) 1213, 137 N. W. 1016, that the husband's forging when the said defendant expected

definite "as to time and place as to the name of the wife did not bring the prosecution within the statute

to accomplish such purpose.” In

our opinion these complaints are exception. We are of opinion that the

hypercritical. statute

IV. A motion to direct verdict exception

for defendant has seven groun against husband does not apply to -Assault to rape. a prosecution for

Motion in arrest of judgment has assault with intent to commit rape.

nineteen grounds. II. The point is made that at all

There are four exceptions to the events the wife of the defendant instructions, and some of these are was not a competent witness be

so subdivided as to amount to a discause the evidence shows she had

tinct exception. The appellant's condoned the offense of her hus

brief urges that it was error to band, if it be assumed that the as

overrule the motion sault for which he was prosecuted to direct and the Aplignme

assignment of was such offense. In view of the

motion in arrest of error

sufficiency. conclusion reached, it is unneces

judgment, and to sary to pass upon this assignment. overrule the exceptions for each and III. In instructions 5 and 8 it is

all of the reasons stated in the exsaid, in effect, to be no defense that ceptions. These are all too general "defendant expect

to entitle appellant to review. Criminal lawinstruction- ed to accomplish

For the error in permitting the sufficiency.

wife of defendant to testify against his purpose without opposition on the part of the him, the judgment must be reprosecutrix." It is urged in the ex

versed, and the cause remanded. ceptions as to this instruction that Preston, Ch. J., and Ladd and this left the jury to conclude that Evans, JJ., concur.


Sexual offense by one spouse with or against third person as a crime against

other spouse within statute relating to competency of husband or wife as witness against other.

I. In general, 1069.
II. Adultery, 1070.
III. Rape and indecent assault, 1071.

IV. Incest, 1071.

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

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

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 743, and Morrill v. State (1879) 5 Tex. offense with or against a third person App. 447; Thomas v. State (1883) 14 is not a crime against the unoffending Tex. App. 72; McLean v. State (1894) spouse within the meaning of such 32 Tex. Crim. Rep. 521, 24 S. W. 898; statutes; and the courts of other ju- Brock v. State (1902) 44 Tex. Crim. risdictions maintain with equal cer- Rep. 335, 60 L.R.A. 465, 100 Am. St. tainty that similar, and often identical, Rep. 859, 71 S. W. 20; Harville v. State statutory provisions, extend the ex- (1908) 54 Tex. Crim. Rep. 426, 113 S. ception so as to permit one spouse to W. 285; Knapp v. State (1908) 54 Tex. testify against the other in cases of Crim. Rep. 633, 130 Am. St. Rep. 903, the character under consideration. 114 S. W. 836; Bryan v. State (1908)

To illustrate without reference to the 55 Tex. Crim. Rep. 136, 114 S. W. 811; nature of the specific crime charged, Sargent v. State (1910) 61 Tex. Crim. the following cases adhere to the theory

Rep. 34, 133 S. W. 885; Vickers v. that statutes permitting one spouse to

State (1912) 69 Tex. Crim. Rep. 628, testify against the other for offenses

154 S. W. 578; State v. Kniffen (1906)

44 Wash. 485, 120 Am. St. Rep. 1009, against the former permit the giving

87 Pac. 837, 12 Ann. Cas. 113; State v. of such testimony in prosecutions for

Beltner (1910) 60 Wash. 397, 111 Pac. sexual offenses with or against third

344. persons: Schell v. People (1918)

For a more detailed exposition of Colo. L.R.A.1918F, 954, 173 Pac.

these statutes and cases, see the follow1141; State v. Bennett (1870) 31 Iowa,

ing subdivisions of this annotation. 24; State v. Hazen (1874) 39 Iowa, 648; State v. Sloan (1880) 55 Iowa,

II. Adultery. 217, 7 N. W. 516; State V. Hughes In Iowa, Nebraska, and Oklahoma, (1882) 58 Iowa, 165, 11 N. W. 706:

adultery by one spouse is a crime State v. Chambers (1893) 87 Iowa, 1, against the other spouse within the 43 Am. St. Rep. 349, 53 N. W. 1090; meaning of a statute rendering husState v. Shultz (1916) 177 Iowa, 321, bands and wives competent witnesses 158 N. W. 539; Lord v. State (1886) against each other in prosecutions for 17 Neb. 526, 23 N. W. 507, 6 Am. Crim. crimes committed by one against the Rep. 17; Hills v. State (1901) 61 Neb. other. State v. Bennett (1870) 31 589, 57 L.R.A. 155, 85 N. W. 836; Hea- Iowa, 24; State v. Hazen (1874) 39 cock v. State (1911) 4 Okla. Crim. Rep. Iowa, 648; Lord v. State (1885) 17 606, 112 Pac. 949; Kitchens v. State Neb. 526, 23 N. W. 507, 6 Am. Crim. (1914) 10 Okla. Crim. Rep. 603, 140 Rep. 17; Hills v. State (1901) 61 Neb. Pac. 619; United States


589, 57 L.R.A. 155, 85 N. W. 836 (dic(1906) 7 Philippine, 247. And see tum); Heacock v. State (1911) 4 Okla. United States v. Cutler (1888) 5 Utah, Crim. Rep. 606, 112 Pac. 949; Kitchens 608, 19 Pac. 145, as cited infra, V. v. State (1914) 10 Okla. Crim. Rep.

And the following cases lay down a 603, 140 Pac. 619 (holding that while contrary doctrine: Bassett v. United adultery is a public offense under the States (1890) 137 U. S. 496, 34 L. ed. Oklahoma statutes, it is also a personal 762, 11 Sup. Ct. Rep. 165, reversing offense against the injured husband or (1887) 5 Utah, 131, 13 Pac. 237; Peo- wife, so that either

omes a compeple v. Quanstrom (1892) 93 Mich. 254, tent witness to prove the offense). And 17 L.R.A. 723, 53 N. W. 165; People v. see State v. Russell (1894) 90 Iowa, Westbrook (1893) 94 Mich. 629, 54 N. 569, 28 L.R.A. 195, 58 N. W. 915. In W. 486; State v. Armstrong (1860) 4 Iowa it has been said that the fact that Minn. 335, Gil. 251; State v. Lasher the statutes also provide that no prose(1913) 131 Minn. 97, 154 N. W. 735; cution for adultery can be commenced State v. Burt (1903) 17 S. D. 7, 62 but on complaint of the husband or L.R.A. 172, 106 Am. St. Rep. 759, 94 wife leads to the inference that the ofN. W. 409; Compton v. State (1882) fense is rather a crime against the un13 Tex. App. 271, 44 Am. Rep. 703, ex- offending spouse than against society pressly overruling Roland State in general. State v. Bennett (1870) 31 (1880) 9 Tex. App. 277, 35 Am. Rep. Iowa, 24. And in the Oklahoma case



of Heacock v. State (1911) 4 Okla. the prosecution of a case depends upon Crim. Rep. 606, 112 Pac. 949, the court the complaint of a particular person, said that the statute preventing any- that therefore that person must be the one except a husband or wife from complaining witness." And to the efcommencing a prosecution for adultery fect that adultery is not a crime against "clearly makes adultery a personal of- the wife, see the dicta in Eassett v. fense against the injured husband or United States (1890) 137 U. S. 496, wife," and continued as follows: "If 34 L. ed. 762, 11 Sup. Ct. Rep. 165, it is not a personal offense, what char- which is quoted infra, V. And see also acter of an offense is it? The law has United States v. Meyers (1908) 14 N. not made it only a public offense, be- M. 522, 99 Pac. 336. cause the public officers are prohibited

III. Rape and indecent assault. from prosecuting it unless the prosecution is commenced and carried on

In Brock v. State (1902) 44 Tex.

Crim. Rep. 335, 60 L.R.A. 465, 100 Am. by the injured husband or wife. How

St. Rep. 859, 71 S. W. 20, it was held could a husband or wife commence and

that a statute providing that a wife carry on a prosecution unless he or she

cannot testify against her husband excould testify in support of such pros

cept in a criminal prosecution for an ecution?

offense committed by him against her On the other hand, in Minnesota and

did not render the wife a competent Texas it has been held that a statute

witness against her husband in a prosepermitting one spouse to testify against

cution for rape committed by him upthe other "in a criminal action or pro

on his stepdaughter, the court mainceeding for a crime committed by one

taining that the statute related only to against the other” does not apply to offenses against the wife personally, the prosecution of a husband for adul

and that offenses against the daughter tery, so as to permit the wife to testi.

were not offenses against the wife. fy against him, even though the stat

And in People v. Westbrook (1893) utes also provide that "no prosecution

94 Mich. 629, 54 N. W. 486, it was held for adultery shall be commenced except

that an indecent assault upon the deon the complaint of the husband or the

fendant's daughter was not a "perwife." State v. Armstrong (1860) 4

sonal wrong or injury” done to the deMinn. 335, Gil. 251; State v. Lasher

fendant's wife, so as to render her com(1915) 131 Minn. 97, 154 N. W. 735;

petent to testify against him on his Compton v. State (1882) 13 Tex. App.

trial for the offense, under a statute 271, 44 Am. Rep. 703 (an incest case

permitting a wife to testify against her which expressly overruled Roland v. husband in cases growing out of a State (1880) 9 Tex. App. 277, 35 Am.

"personal wrong or injury" done by Rep. 743, and Morrill v. State (1879)

him to her. It will be noted that the 5 Tex. App. 447, both of which were statute here expressly applies to peradultery cases); cases); Thomas v. State

sonal wrongs or injuries. (1883) 14 Tex. App. 72; McLean v. And see also the reported case State (1894) 32 Tex. Crim. Rep. 521, (STATE v. Wilcox, ante, 1066), as dis24 S. W. 898; Sargent v. State (1910) cussed infra, VI. 61 Tex. Crim. Rep. 34, 133 S. W. 885. In this connection the court in the

IV. Incest. Armstrong Case argued as follows: Under statutes which make husbands "We think in limiting the prosecution and wives competent witnesses against of the crime of adultery to cases in each other, and which apply generally which the complaint should be made by to all crimes committed by one spouse the husband or wife, the legislature against the other, it has been held that meant only to say that it was a crime the true rule is that incest is a crime which, if the parties immediately in- against the innocent spouse in such a terested did not feel sufficiently injured sense as to make him or her a compeby it to institute proceedings against tent witness against the other spouse in the offender, the public would not no- a prosecution for such an offense. tice it. It does not follow that because State v. Chambers (1893) 87 Iowa, 1,

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