State v. Smith

¶16 (dissenting). — If Mary Worthley, instead' of remarrying her former husband, had contracted a second marriage with some other person before the commencement of the prosecution, who could or should have made the conn plaint? The majority opinion does not squarely answer this problem. And yet I think the fair inference is that the first husband, although divorced, may commence the prosecution. This is not, in my judgment, a proper construction of' the statute. It is the husband or wife of the injured person at the time the prosecution is commenced who. must make this complaint. Such is the proper grammatical construction of the statute, and such construction harmonizes, all our former holdings. The Oklahoma case announces the proper rule, as I understand it. Disturbance of the relation, between husband and wife on complaint of a former divorced, husband is not in accord with my view of sound public policy. If the husband against whom the. offense is committed waives, his right to prosecute by securing a divorce from his wife,, he should not be permitted to disturb a second marriage,, entered into in good faith, and with the best of motives. Pub- • lie policy accords with the proper construction of the statute,. and I think it clear that it is the husband or wife bearing that relation at the time the proceedings are instituted who must. make the complaint. These views are sustained by State v. Russell, 90 Iowa, 569; Bush v. Workman, 64 Iowa, 206; State v. Corliss, 85 Iowa, 18; State v. Bennett, 31 Iowa, 24; State v. Oden, 100 Iowa, 22; State v. Roth, 17 Iowa, 336.

¶2II. I am not entirely satisfied with the second division ■ of the opinion. Impressed, however, that much that is said" in the Donovan and Oden Cases is contrary to the great weight,-. *449of authority, and opposed to sound reason, I am content with the conclusion reached in that branch of the opinion. The judgment should, in my opinion, be reversed.