Defendant was convicted of the crime of aiding and abetting her husband in committing rape upon her daughter, Elizabeth Nax. Elizabeth Nax is the illegitimate daughter of defendant and was born and brought up in Germany and at the time of the alleged crime was between 16 and 17 years of age. The defendant came to this country from Germany some years ago and was married to Frank Werner. In February, 1921, Elizabeth Nax came from Germany to live with her mother and stepfather. It is alleged that the day after her arrival the offense was committed and the defendant actively assisted Frank Werner in committing the crime. The trial brought before the jury sharp-cut issues of fact and the verdict found the rape committed by force and defendant's active assistance therein. It is hard to believe that a mother could become so lost to all sense of motherhood and so depraved as to lend assistance to her husband in outraging her own daughter, but the jury so found and there was evidence justifying the verdict.
Frank Werner, the husband of defendant, but not the father of the girl, was convicted of the rape, previous to the trial of defendant, but his conviction was reversed and a new trial granted in People v. Werner, 221 Mich. 123. The conviction herein is assailed as a woeful miscarriage of justice, resting upon the improbable and uncorroborated story of a wicked girl instigated by hatred of her mother.
We have gone over the record with care, have measured the claimed improbabilities with the claimed facts; viewed the disclosed life of defendant and her *Page 21 illegitimate daughter; considered the possible animus of the daughter arising out of resentment at parental correction and disappointment over expected but not realized luxuries, and have noted the claimed prevarication of the girl, but cannot find the verdict so contrary to the great weight of the evidence as to justify us in setting it aside on that ground.
It is somewhat difficult to harmonize the friendly relations between the girl and her ravisher with the brute force she claims was exerted by him and her mother, but we constitute no reviewing jury. The girl is either a most vicious fabricator with talent comprehending the essence of the crime of rape, or else an innocent who has told just exactly what happened. Defendant was sentenced to prison for a minimum term of 15 years and the case is here on writ of error.
Many errors are assigned; but few call for opinion. The prosecutor stated in the presence of the jury that he would like to call Frank Werner as a witness. Objection was promptly made. The court sent the jury from the room. In the absence of the jury the prosecuting attorney admitted that he could not call Frank Werner against defendant's objection. The court sustained the objection. Was it reversible error to put defendant in the position of refusing to let the jury have the testimony of her husband, the claimed ravisher with her aid of her daughter? It was held to constitute reversible error inPeople v. Trine, 164 Mich. 1, and excused, for reasons not here present, in People v. Osborn, 205 Mich. 531. In giving instruction to the jury the trial judge stated:
"At the close of the case the prosecutor in your presence, called Frank Werner to the stand and an objection was raised. Now, gentlemen, I want to say to you that you are not to consider or give any weight to the fact that the prosecuting attorney called Frank Werner as a witness and to the objection to his being *Page 22 sworn in this case. They had a right to make that objection for several reasons and this respondent is not to be prejudiced by the making of such objection and, therefore, you will leave that whole matter out of your deliberation entirely."
Did this cure the error? The fault in the instruction lies in the intimation that the objection excluded the witness from testifying and, even though the jury were told that the objection was proper and making it should not militate against defendant, this did not inform the jury that the calling of the husband was a violation of defendant's privilege. The exclusion of a husband from being a witness against his wife, in this kind of a case, stands as a complete bar, unless she consents, and it constitutes error to compel the defendant in the presence of the jury to assume the attitude of keeping out testimony, only admissible by virtue of her consent. The statute applicable to this case provides:
"A husband shall not be examined as a witness for or against his wife without her consent * * *." 3 Comp. Laws 1915, § 12555.
This does not mean that a wife, to have the benefit of the statute, must exhibit her want of consent to the jury by way of objection. The statute excludes unless consent is given. This the prosecutor knew. He had no consent. Under the circumstances above stated it was reversible error to compel defendant, in order to preserve her right under the statute, to object to the violation of the statute and thereby be placed in the position of keeping testimony from the jury.
This court has recognized a distinction, so far as reversible error is concerned, in transgression of the rule in civil cases, like Zimmerman v. Whiteley, 134 Mich. 39, and in criminal cases like People v. Trine, supra. In a civil case, involving nothing but dollars, a plaintiff seeking to enhance chance of recovery and *Page 23 amount thereof, by way of exclusion of his wife as a witness, after he has testified to what his wife said in various interviews between his wife, himself and defendant, suffers no such harm, if called upon merely to invoke the rule, as to constitute reversible error. But in a criminal case liberty is at stake and the defendant must not be compelled to imperil the same by an appeal to the rule of exclusion and be left in the attitude of suppressing evidence. The statute excludes the calling in civil and criminal cases, and, therefore, to call in either class is a transgression of the statute. The error arising because of the transgression may be cured by prompt exclusion in a civil case, and by such exclusion, accompanied by an unqualified admonition of the unlawfulness of the calling, in a criminal case. But whether the error of the transgression is cured or not must, in any case, depend upon the particular circumstances disclosed.
Evidently the prosecutor thought there was some question about the relation of husband and wife between the defendant and Frank Werner because of a divorce proceeding in California, their passing as brother and sister, and defendant's going under another name, but this question was set at rest by the testimony of defendant and the following admission of the prosecutor: "I do not claim I could call him against her objection."
It is claimed there was error in the charge of the court because of contradictory instructions upon the issue of threats and force employed in the assault. The following extracts from the charge do appear to have been somewhat contradictory:
"By force is meant the application of such physical violence against the girl as to compel submission to the act of intercourse or threat of such force and violence or such threats of such force and violence as actually would and did in this particular case become so great as to overcome the possibility *Page 24 of resistance on the part of the girl. It is not sufficient that mere idle promises or idle threats may have been made nor is it sufficient that the statement made by the respondent and somebody else in her presence that something would happen to the girl if she did not submit or that she would be prohibited from going freely about if she did not submit nor is it a sufficient threat of force if the girl was told by the respondent that she and her mother would be thrown out, if the girl did not submit. A threat of force on the part of the respondent or Werner in order to amount to force, which in law it must amount to in this case, must be such a threat of force as by its very nature makes it impossible for the girl to resist and such threats of force in this case must have been made at the time when the offense is alleged to have been committed, to-wit: the night of the 14th of February, 1921.
"It is the claim of the prosecuting attorney that at the time of the rape aforesaid the respondent was present in the house, that she knew that the girl did not desire intercourse, that she knew the girl was struggling and resisting the outrage. That she told the girl that she must not be silly, that it was customary for that sort of thing to occur to girls in America, and told her that if she did not consent Frank would throw them both out of the house, and I say to you that if you believe beyond a reasonable doubt that the respondent did these things, as the prosecuting attorney claims, then that would amount in law to such an aiding, abetting, and consenting as would make her guilty of the crime charged in the information."
It does not necessarily follow, however, that defendant has been harmed thereby. If the last part of the charge stated the law then the first part was more favorable to defendant than was her right, and if confusion was occasioned thereby it could not have been to the disadvantage of defendant. The last part of the instruction correctly stated the law. We do not approve of the submission of issues under the head "as the prosecuting attorney claims." No point is made on this, however. *Page 25
The other errors assigned have been examined but as they relate to subjects not pressed upon the argument we pass them with the observation that they disclose no error resulting in a miscarriage of justice.
The conviction is set aside and a new trial ordered and defendant is remanded to the custody of the sheriff of the county of Oakland.
FELLOWS, BIRD and MOORE, JJ., concurred with WIEST, C.J. McDONALD, J., concurred in the result.