State v. Vollander

Gilpillan, C. J. Without deciding the question whether an indictment will be set aside on the ground merely that incompetent [227] evidence was received by the grand jnry upon the charge on which it is found, we will decide' the question presented by the briefs. It is this: Upon a charge against the man alone, for adultery with a married woman, is the husband of the woman a competent witness to prove the crime? The courts in several states hold him incompetent, none of them on the ground that any legal right or interest of the wife will be affected, but, where they state any reason for so deciding, upon the ground, apparently, of public policy, because to permit the testimony will create discord and dissension between the husband and wife. Other courts hold the testimony competent. In this state the matter of public policy is settled by the statute, which provides (Pen. Code, § 262) that “no prosecution for adultery shall be commenced except on the complaint of the husband or wife (save when insane).” If it be consistent with public policy that the injured party alone may institute the prosecution, it cannot be inconsistent with it that he or she may support it against the paramour by testifying to the facts within his or her knowledge; and it would be strange if the party may make complaint, but may not give evidence in support of it. Whether the evidence would be competent on a charge against the husband or wife need not be considered. The decision of the court below is affirmed. Buck, J., absent, sick, took no part. (Opinion published 58 N. W. 878.)