COTENANCY.-A PURCHASE AT A TAX SALE of the common property by one cotenant in the name of a third person inures to the benefit of all the cotenants. All that the purchaser can demand of them is contribution to the expense by which the common property has been relieved from embar. rassment: Tanney v. Tanney, 159 Pa. St. 277; 39 Am. St. Rep. 678, and

note.

DOWER-LIMITATIONS OF ACTIONS.-Dower is not within the statute of limitations: Burnard v. Edwards, 4 N. H. 107; 17 Am. Dec. 403. The statute of limitations does not bar a widow's right to dower: Sellman v. Bowen, 8 Gill & J. 50; 29 Am. Dec. 524. A widow's right of action for dower in lands conveyed by the husband without her joining in the deed accrues at his death, and the statute of limitations commences to run against her from that date: Winters v. De Turk, 133 Pa. St. 359. See, also, the note to Hitchcock v. Harrington, 5 Am. Dec. 237.

DOWER-WHETHER EXTINGUISHED BY JUDICIAL SALE AGAINST HUSBAND OR CONVEYANCE BY HIM.-A sale of lands in partition proceedings is a judicial sale, and such a sale of a husband's interest in land to which he is a party extinguishes the wife's right of dower therein though she was not a party: Williams v. Wescott, 77 Iowa, 332; 14 Am. St. Rep. 287. At the common law a widow's right of dower in the lands of which her husband was seised during their coverture was superior to the claim of a creditor thereto obtained by sale under a judgment against the husband: Combs v. Young, 4 Yerg. 218; 26 Am. Dec. 225, and note. Dower provided by law in behalf of the widow is paramount to all conveyances, contracts, encumbrances, debts, or liabilities of the husband executed or incurred during coverture: Higginbotham v. Cornwell, 8 Gratt. 83; 56 Am. Dec. 130, and note. See, also, the notes to the following cases: Den v. Frew, 22 Am. Dec. 710; Moore v. Mayor, 59 Am. Dec. 475; Reis v. Lawrence, 49 Am. Rep. 87; Leavitt v. Lamprey, 23 Am. Dec. 687, and Thompson v. Morrow, 9 Am. Dec. 363.

JUDGMENT PROCESS BY WRONG NAME-EFFECT.-If process is served on the defendant personally, in which he is designated by an incorrect name, the judgment is valid, and cannot be collaterally, attacked by proving that the person named in the process as defendant was not in fact the person served: Foshier v. Narver, 24 Or. 441; 41 Am. St. Rep. 874, and note.

JUDGMENTS-VACATING FOR WANT OF JURISDICTION.-An action may be maintained to set aside a judgment rendered by a court which had obtained no jurisdiction from want of service of process: Magin v. Lamb, 43 Minn. 80; 19 Am. St. Rep. 216, and note; People v. Greene, 74 Cal. 400; 5 Am. St. Rep. 448. A judgment obtained against a party without service of process can be relieved against by motion in the original cause: Crocker v. Allen, 34 S. C. 452; 27 Am. St. Rep. 831, and note. See further the notes to Johnson v. Gregory, 31 Am. St. Rep. 910; Wilson v. Hawthorne, 20 Am. St. Rep. 294, and Taylor v. Lewis, 19 Am. Dec. 137.

CASES

IN THE

SUPREME COURT

ОР

IOWA.

STATE V. CHAMBERS.

[87 IOWA, 1.]

WITNESS-WIFE AGAINST HUSBAND.-A PROSECUTION AGAINST ▲ HusBAND FOR INCEST is a criminal proceeding for a crime committed against his wife, and she is therefore a competent witness against him under statute declaring that neither a husband nor wife shall be a witness against the other except in a criminal prosecution for a crime committed by one against the other.

INCEST AND RAPE.-One accused of incest cannot escape conviction on the ground that the female upon whom the crime was committed did not consent thereto, or was of such an age that she was not at the time capable of giving her consent. That the act so committed also constitutes the crime of rape does not prevent it from constituting the crime of incest.

Charles W. Kepler, for the appellant.

John Y. Stone, attorney general, for the state.

2 GIVEN, J. 1. The appellant was charged with the crime of incest before a justice of the peace, and on April 6, 1891, he waived examination, and gave bond to appear and answer before the grand jury. The district court being then in session, the grand jury returned an indictment on April 11, 1891, against the defendant, charging him with the same act of incest. The appellant moved to quash the indictment for the reason that no opportunity was given him to challenge the grand jury, and because the grand jury had no right to take jurisdiction of the case. It does not appear from the record whether the defendant was held to answer at the term of court then in session or at the next term; but as the magistrate was not required to make return to the

district

court until "on or before its opening, on the first day of the next term thereof," we must presume that he was held to appear at the next term. We must also presume that the magistrate did not make his return to the term then in session. From this record we conclude that the grand jury did not act upon a return from the magistrate, but took up the case as though there had been no preliminary hearing. The fact that the appellant had been held to appear at a future term did not divest the grand jury of jurisdiction to examine the case upon its own motion. Having this jurisdiction, and having so examined the case, and returned the indictment, the appellant had no right to challenge the grand jury.

2. Salina Chambers was called and sworn as a witness on behalf of the state, and having testified that she was the wife of the defendant, "the defendant now objects to the competency of this witness to testify in this case," which objection was overruled. The wife having testified to her marriage to the defendant, to improper conduct of his toward Sarah D. Cowden, and to what was said between the witness and the defendant at the time, the defendant moved to strike out all her testimony, "because she is the wife of the defendant, and is incompetent to testify against him." This motion was overruled. It will be noticed that the objection and motion were solely upon the ground of incompetency of the witness, and the contention is that this is a criminal prosecution for a crime committed against the wife. Section 3636 of our code provides as follows: "Every human being with sufficient capacity to understand the obligation of an oath is a competent witness in all cases, both civil and criminal, except as herein otherwise provided." The exception declared is found in section 3641, as follows: "Neither the husband nor wife shall, in any case, be a witness against the other, except in a criminal proceeding for a crime committed by one against the other, or in a civil action or proceeding, one against the other; but they may, in all civil and criminal cases, be witnesses for each other."

In State v. Bennett, 31 Iowa, 24, a prosecution against the wife for adultery, it was held that the husband was a competent witness against his wife: See, also, State v. Hazen, 39 Iowa, 648. In State v. Sloan, 55 Iowa, 217, it was held that on the trial of the husband for bigamy his legal wife was a competent witness in behalf of the state. The court says: "In our opinion, if the defendant is guilty of bigamy, he com

mitted a crime against his wife. We think she was a competent witness": See, also, State v. Hughes, 58 Iowa, 165.

In People v. Quanstrom, 93 Mich. 254, the supreme court of Michigan holds, under the Michigan statute, that "bigamy on the part of the husband is not such a personal wrong or injury to the wife as to allow her to testify against the husband." Section 7546 of that statute is a follows: "A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other." In Bassett v. United States, 137 U. S. 496, a prosecution for polygamy, it was held, under the Code of Criminal Procedure of Utah, that the offense charged was not such a wrong against the wife as to render her testimony admissible. The exception contained in that code is where the testimony is given with the consent of both, or "in cases of criminal violence upon one by the other." It will be noticed that the exceptions in these statutes apply to personal wrong or injury, while under ours they apply to "all criminal prosecution for a crime committed one against the other." There are many crimes other than against the person which one may commit against another.

Compton v. State, 13 Tex. App. 271, 44 Am. Rep. 703, is a case identical with this. That was a charge of incest against the husband with the daughter of his wife, and the competency of the wife to testify was raised, under a statute the same as ours. The court held that she was not a competent witness against her husband, overruling Morrill v. State, 5 Tex. App. 447; Roland v. State, 9 Tex. App. 277; 35 Am. Rep. 743. It is the fact of the marital relation that makes the acts here charged constitute the aggravated crime of incest. Were it not for this relation, these acts would constitute a much less grave offense. The crime charged is surely as much, if not more, a crime against the wife of the accused, than would be the crime of adultery or bigamy. Following former decisions of this court, we hold that this is a prosecution for a crime committed by the defendant against his wife, within the meaning of section 3641, and that Mrs. Chambers was a competent witness for the state.

Counsel for the appellant, in argument, called attention to section 3642 of the code, providing that neither husband nor wife can be examined in any case as to any communication

made by the one to the other while married. The record fails to show that any objection was made on the trial, based upon this statute. As already stated, the objections were grounded solely upon the claim that the witness was incompetent. It does not appear from the record that the witness was called upon to testify to any communication made to her by her husband, within the meaning of the section referred to. The rule of this section, in its spirit and extent, is analogous to that which excludes confidential communications: 1 Greenleaf on Evidence, sec. 338. There was no error in permitting Mrs. Chambers to testify, nor in refusing to strike the testimony which she had given.

3. The appellant asked the following instructions, which were refused, and of which refusal he complains:

"2. The crime of incest can only be committed by the mutual acts of the parties, and both parties are equally guilty, under the facts pleaded in the indictment; and hence, in this case, if you find from the evidence of the prosecutrix, Sarah D. Cowden, that she and the defendant had sexual intercourse, then, in law, she was an accessary and accomplice with the defendant to the crime charged in the indictment, and you cannot convict on her testimony alone, but she must be corroborated by other witnesses, tending to connect the defendant with the crime charged."

"4. In order to constitute the crime of incest the defendant and the prosecutrix, Sarah D. Cowden, must have mutually agreed to have, and did have, actual copulation; and, unless the evidence satisfies you of this fact beyond a reasonable doubt, you should acquit the defendant."

Code, section 4559, is as follows: "A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense, or the circumstances thereof." The appellant contends "that both parties must mutually agree to have sexual intercourse, and have actual copulation, before the crime of incest is committed"; that, if consent on the part of the female is wanting, it is not incest, and if she consents she is an accomplice, and must be corroborated, as provided in section 4559. In State v. Sanders, 30 Iowa, 582, the defendant was charged with adultery, and the woman with whom it was charged he committed the crime testified that the act