Bush v. Workman

Beck, J. I. The information against plaintiff was filed with the justice by the husband of the woman with whom plaintiff is alleged to have committed the crime. It is not shown therein, or in any other manner, that the wife of plaintiff, he being a married man, commenced the prosecution, or that she authorized, sanctioned or approved of it. These facts are shown by the answer of defendant, a demurrer to which was overruled by the circuit judge. II. Code, § 4008, provides that “no prosecution for adultery can be commenced but on the complaint of the husband or wife.” It canriot be doubted that the words “ husband or wife” refer to and mean the spouse of the person charged with the offense. The statute is express and plain in its language, and its meaning cannot be misunderstood. It forbids prosecutions for adultery, except when commenced by the spouse of the person prosecuted. It is not for us to inquire into the policy of the statute. While it may be condemned by some, much may to said in its favor. [207] The question here determined has not before been decided by this court. Other questions growing'out of prosecutions under the statute in question have been decided here, but they have little, if any, bearing upon the case before us. See The State v. Baldy, 17 Iowa, 39; The State v. Dingee, Id., 232; The State v. Roth, Id., 336; The State v. Wilson, 22 Id., 364; The State v. Sanders, 30 Id., 582; The State v. Bennett, 31 Id., 24; The State v. Henke, 58 Id., 457. It is our conclusion that the judge of the circuit court erred in overruling the demurrer of the plaintiff to defendant’s answer. His decision is therefore Reversed.