State v. Astin

Mackintosh, J.

Chapter 98, Laws 1917, page 311, provides that no prosecution for adultery shall be commenced except on complaint of the husband or wife injured. Such a complaint having been filed and the prosecution thus begun, can the husband or wife discontinue and terminate that prosecution by moving to have it dismissed, or in any way interfere in the conduct of the case by the prosecuting attorney?

The purpose of the act is, as stated in the case of State v. La Bounty, 64 Wash. 415, 116 Pac. 1073, to put the commencement of the prosecution in the exclusive control of the injured spouse, in order that reconciliation Plight take place free from publicity and notoriety, but this reason no longer exists when the publicity and notoriety have occurred by the filing of the complaint or information, which is necessarily of record. The state of Iowa has a statute substantially the same as ours, and this question has been passed upon in that jurisdiction. In State v. Baldy, 17 Iowa 39, the court held:

“This statute does not require that the husband or wife shall continue to prosecute to conviction, but it is sufficient if the prosecution is commenced on their complaint. After it is thus commenced, it may be continued without further co-operation on their part. As it appears that this prosecution was commenced on the complaint of the wife, it was not error to continue the prosecution to final determination, even without her presence or consent.”

In the case of State v. Leek, 152 Iowa 12, 130 N. W. 1062, the same court said:

“The fact that she subsequently relented and desired that the defendant should not be convicted would not require the dismissal of the case as to defendant, if it had been properly instituted on her complaint.”

The case, after the complaint is filed, is no longer a matter of private concern but has partaken of all the attributes of a public offense, and the injured spouse should have no more right to control the further disposition of the case than should the complaining witness in any other criminal action. To hold otherwise would be to open the door of a treasure room for a horde of blackmailers. A tender solicitude for persons whose misfortunes have already been exposed to public view by the filing of criminal charges certainly should not lead to the result that extortionists are to be equipped with a new set of weapons. In no other class of litigation is the opportunity for blackmail already so great, and to increase it by putting into the power of the complaining witness not only the institution, but the entire destiny, of the prosecution, is to close our eyes to a grievous situation and add to its immense possibilities for the evilly disposed. If the complaining witness can dismiss the action at his pleasure, he may enjoy that right until final judgment; before, during, or after trial, at his whim, the defendant may be discharged; what becomes then of the argument that the right to control the action rests with the complaining witness for the purpose of protecting innocent persons from the publicity attached to such actions? To allow such a result, especially in a class of crime where the making of complaint is so subject to abuse, is abhorrent to the fundamental principles of law and morals.

The only authority holding to the contrary of the views here expressed is a three-line opinion by Judge Cooley, in People v. Dalrymple, 55 Mich. 519, 22 N. W. 20, where that distinguished judge decided that the dismissal at the request of a complaining witness, though against the letter, was not against the spirit of a statute similar to ours; a decision not consistent with rules of statutory construction, which have never received better expression than that given by the same authority. The decision can only be explained by recalling that even great Homer is reputed to have sometimes nodded.

The lower court was in error in dismissing the information in this case, and its action in so doing is reversed.

Mitchell and Main, JJ., concur.