Elandrau, J.
By the Court I will notice the objections briefly in the order in which they were made by the Counsel for the prisoner on the trial. Although the Statutes of this State confer upon the courts the somewhat extraordinary power of amending an indictment upon demurrer, yet it comes with the qualification that it is only in those cases in which “ the Defendant will not be unjustly prejudiced thereby)’* that it can be properly exercised. Compiled Statutes, page [340]*340765, Sec. 7. By reference to the same Statutes on page 701, it will be found that the Defendant can only “ be held to answer ” for the offence of adultery “ on the presentment or indictment of a Grand Jury.” It is quite clear that the indictment, as it came from the Grand Jury, failed in a very essential particular in making any charge against the Defendant, that he could be tried upon, as it did not show that the crime was committed within the jurisdiction of the court. To supply an averment by amendment, which is necessary to perfect the charge, is in effect to “ hold the Defendant to answer for a criminal offence ” in a manner, other, than “ on the indictment of a Grand Jury,” and is, in a high degree, unjustly prejudicial to his rights as a citizen. Courts are bound to give effect to Statutes if possible, and this one, allowing an indictment to be amended, may be satisfied by permitting it to operate upon mere matters of form ; as for instance, the date, or place of the finding, or the court in which found, if omitted, might be supplied by amendment when actually within the knowledge of the court; but matters of substance can never be inserted in an indictment as the Statutes now stand, by any other tribunal than the Grand Jury.
After the indictment was amended by the court, it still failed in charging the Defendant with the crime of adultery. It appearing from the indictment that the woman with whom the Defendant had carnal and illicit intercourse, was at the time unmarried, the offence is simply fornication under our Statute.
There being no definition of the crime of adultery in the Statute, the language being simply: “ Every person who shall commit the crime of adultery,” recourse must be had to “well established definitions, sanctioned by books of authority, and adopted by long usage,” to ascertain what constitutes the crime, whenever such question shall arise. I find in Archibald's Crim. Pr. and Pl. Vol. 3, page 615, Waterman's Ed., an elaborate and learned exposition of the subject of adultery in a note by "Waterman, which reviews the law applicable to the question, in England and many of the United States. Wherever the question has been examined in the numerous cases cited by Mr. Waterman, with few exceptions, the princi[341] pie seems to be recognized by the courts that the gist of the crime, independently of statutory enactments, is the danger of introducing spurious heirs into a family, whereby a man may be charged with the maintenance of children not his own, and the legitimate offspring be robbed of their lawful inheritance. That an offence which may entail such consequences upon society, is much more aggravated in its nature, than the simple incontinence of a husband, few can doubt; although, in a moral point of view, the sin is equally heinous; and when regarded in a civil light, as a violation of ' the marriage contract, no distinction is made between an illicit connection by a married man with a married or an unmarried woman; in either case', for the purpose of a divorce, he is guilty of adultery.
In several of the States the carnal knowing of a single woman by a married man, subjects the latter to the crime of adultery, but it always arises from some feature in the Statutes of the State which bring such an act within the definition given of the crime.
Our Statute leaves it to be decided by what the law was before its passage, without throwing any light upon the subject, save what may be inferred from the provision contained in it, that “when the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery.” This special provision made to include an unmarried man, would seem to indicate that the Legislature were of the opinion that it required both parties to be married to constitute the crime of adultery, and that they only intended to change the rule in the particular case of connection between an unmarried man with a married woman. Such had been held to be the law in Pennsylvania, in Resp. vs. Roberts, 2 Dallas Rep. 124, before the Statutes of the Territory of Minnesota were passed, and, although the decision is not sustained by principle, and has been seriously questioned, yet I do not find that it has been overruled in that State.
That the Legislature did not intend to include the case of an illicit connection between a married man and an unmarried woman within the crime of adultery, further appears from the fifth section of the same act, which defines the offence of fornication to be the illicit connection of “ any mem with any [342] svngle woman,” making both the man and the woman, in such case, guilty of fornication. This definition clearly includes the offence charged in the indictment in the case at bar, and makes it a much lower grade of offence than the one of which the Defendant was convicted. "We feel bound to conclude that the Legislature, having made these special provisions, intended to exclude from the crime of adultery the case made out by the facts stated in this indictment.
The Statutes, Comp. Stat. p. 681, Sec. 53,) only allow the wife to testify against the husband, or the husband against the wife, without the consent of the one against whom the testimony is offered, in “ a criminal action or proceeding for a crime committed by one against the other.” This exception is inserted simply to save those cases where, at common law, a wife could be a witness against her husband, or a husband against his wife, and not to introduce any new rule, or extend the old one.
Mr.. Greenleaf, in his work on Evidence, Volume 1, Section 343, says that these exceptions are allowed “ partly for the protection of the wife in her life and liberty, and partly for the sake of public justice. But the necessity which calls for this exception for the wife’s security, is described to mean ‘ not a general necessity, as where no other witness can be had, but a particular necessity as where, for instance, the wife would be exposed without remedy to personal injury.’ ” He instances the decided cases of a forcible abduction and marriage of the woman. The case of a rape upon her person, an assault and battery upon her, or for maliciously shooting her.
In The People vs. Chegaray, 18 Wend. 642, Justice Bronson doubts “ whether the testimony of the wife should in any case be received against the husband, except where she complains of personal violence or ill treatment of herself.” “ She is competent in a prosecution against her husband for a personal outrage against herself.” 3 Phil. Ev. with notes by Cow. and Hill, p. 76.
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Elandrau, J.
By the Court I will notice the objections briefly in the order in which they were made by the Counsel for the prisoner on the trial. Although the Statutes of this State confer upon the courts the somewhat extraordinary power of amending an indictment upon demurrer, yet it comes with the qualification that it is only in those cases in which “ the Defendant will not be unjustly prejudiced thereby)’* that it can be properly exercised. Compiled Statutes, page [340]*340765, Sec. 7. By reference to the same Statutes on page 701, it will be found that the Defendant can only “ be held to answer ” for the offence of adultery “ on the presentment or indictment of a Grand Jury.” It is quite clear that the indictment, as it came from the Grand Jury, failed in a very essential particular in making any charge against the Defendant, that he could be tried upon, as it did not show that the crime was committed within the jurisdiction of the court. To supply an averment by amendment, which is necessary to perfect the charge, is in effect to “ hold the Defendant to answer for a criminal offence ” in a manner, other, than “ on the indictment of a Grand Jury,” and is, in a high degree, unjustly prejudicial to his rights as a citizen. Courts are bound to give effect to Statutes if possible, and this one, allowing an indictment to be amended, may be satisfied by permitting it to operate upon mere matters of form ; as for instance, the date, or place of the finding, or the court in which found, if omitted, might be supplied by amendment when actually within the knowledge of the court; but matters of substance can never be inserted in an indictment as the Statutes now stand, by any other tribunal than the Grand Jury.
After the indictment was amended by the court, it still failed in charging the Defendant with the crime of adultery. It appearing from the indictment that the woman with whom the Defendant had carnal and illicit intercourse, was at the time unmarried, the offence is simply fornication under our Statute.
There being no definition of the crime of adultery in the Statute, the language being simply: “ Every person who shall commit the crime of adultery,” recourse must be had to “well established definitions, sanctioned by books of authority, and adopted by long usage,” to ascertain what constitutes the crime, whenever such question shall arise. I find in Archibald's Crim. Pr. and Pl. Vol. 3, page 615, Waterman's Ed., an elaborate and learned exposition of the subject of adultery in a note by "Waterman, which reviews the law applicable to the question, in England and many of the United States. Wherever the question has been examined in the numerous cases cited by Mr. Waterman, with few exceptions, the princi[341] pie seems to be recognized by the courts that the gist of the crime, independently of statutory enactments, is the danger of introducing spurious heirs into a family, whereby a man may be charged with the maintenance of children not his own, and the legitimate offspring be robbed of their lawful inheritance. That an offence which may entail such consequences upon society, is much more aggravated in its nature, than the simple incontinence of a husband, few can doubt; although, in a moral point of view, the sin is equally heinous; and when regarded in a civil light, as a violation of ' the marriage contract, no distinction is made between an illicit connection by a married man with a married or an unmarried woman; in either case', for the purpose of a divorce, he is guilty of adultery.
In several of the States the carnal knowing of a single woman by a married man, subjects the latter to the crime of adultery, but it always arises from some feature in the Statutes of the State which bring such an act within the definition given of the crime.
Our Statute leaves it to be decided by what the law was before its passage, without throwing any light upon the subject, save what may be inferred from the provision contained in it, that “when the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery.” This special provision made to include an unmarried man, would seem to indicate that the Legislature were of the opinion that it required both parties to be married to constitute the crime of adultery, and that they only intended to change the rule in the particular case of connection between an unmarried man with a married woman. Such had been held to be the law in Pennsylvania, in Resp. vs. Roberts, 2 Dallas Rep. 124, before the Statutes of the Territory of Minnesota were passed, and, although the decision is not sustained by principle, and has been seriously questioned, yet I do not find that it has been overruled in that State.
That the Legislature did not intend to include the case of an illicit connection between a married man and an unmarried woman within the crime of adultery, further appears from the fifth section of the same act, which defines the offence of fornication to be the illicit connection of “ any mem with any [342] svngle woman,” making both the man and the woman, in such case, guilty of fornication. This definition clearly includes the offence charged in the indictment in the case at bar, and makes it a much lower grade of offence than the one of which the Defendant was convicted. "We feel bound to conclude that the Legislature, having made these special provisions, intended to exclude from the crime of adultery the case made out by the facts stated in this indictment.
The Statutes, Comp. Stat. p. 681, Sec. 53,) only allow the wife to testify against the husband, or the husband against the wife, without the consent of the one against whom the testimony is offered, in “ a criminal action or proceeding for a crime committed by one against the other.” This exception is inserted simply to save those cases where, at common law, a wife could be a witness against her husband, or a husband against his wife, and not to introduce any new rule, or extend the old one.
Mr.. Greenleaf, in his work on Evidence, Volume 1, Section 343, says that these exceptions are allowed “ partly for the protection of the wife in her life and liberty, and partly for the sake of public justice. But the necessity which calls for this exception for the wife’s security, is described to mean ‘ not a general necessity, as where no other witness can be had, but a particular necessity as where, for instance, the wife would be exposed without remedy to personal injury.’ ” He instances the decided cases of a forcible abduction and marriage of the woman. The case of a rape upon her person, an assault and battery upon her, or for maliciously shooting her.
In The People vs. Chegaray, 18 Wend. 642, Justice Bronson doubts “ whether the testimony of the wife should in any case be received against the husband, except where she complains of personal violence or ill treatment of herself.” “ She is competent in a prosecution against her husband for a personal outrage against herself.” 3 Phil. Ev. with notes by Cow. and Hill, p. 76.
A prosecution for the crime of adultery does not fall within the cases in which a wife could testify against her husband under the general rule, for two reasons. First. — The necessity which warrants the exception does not exist, as all the mate[343] rial features of such an offence are susceptible of proof without' her aid as readily as in other crimes. Second. — It is not a crime against her person, and involves no violence to, or abuse of her.
As the purpose of the Statute was to save those exceptional cases which existed prior to its passage, which would otherwise have been swept away by the preceding part of the same section, and as adultery was not one of them, let us see whether it is brought within that class by operation of the Statute.
The act provides that “ no prosecution for adultery shall be commenced except on the complaint of the hxisband or the wife.” Com. Stat. 728, Sec. 1. It is contended that this provision authorizes them to be sworn as witnesses against each other before the Grand Jury in making the complaint. We think, however, that such wasmot the intention of the Legislature, because in the act in which they recognize and adopt the Common Law exceptions in favor of a wife or a husband testifying against each other, they manifest their intention of making no inroads into the marrigae relation, but of preserving it sacred as it previously existed. In speaking of it, they say, “ There are particular relations in which it is the policy of the law to encourage confidence, and to preserve it inviolate.” We could not, in the face of this declaration, consistently with the rules of construction of Statutes, add another case to those in which the confidence of the marriage relation may be violated, while another reasonable interpretation will fully satisfy the Statute. _ We think in limiting the prosecution of the crime of adultery to cases in which the complaint shall be made by the husband or wife, the Legislature only meant to say, that it was a crime, which, if the parties immediately interested did not feel sufficiently injured by it, to institute proceedings against the offender, the public would not notice it. It does not follow that because the prosecution of a case proceeds upon the complaint of a particular person, that therefore, that person must be the complaining witness. The person who moves the prosecution before the magistrate, or Grand Jury, may not personally know any thing about the facts of the crime, but he can, nevertheless, put the investigation in motion, by entering a complaint, and either producing [344] the witnesses who can establish the facts, or putting the officers of the law in the way of doing so. It means that it must be upon the motion, and with the approbation of the interested party.
Marriages and deaths, in civil actions involving questions of inheritance, the legitimacy of heirs, &c., may often be proven by admissions of the parties, inscriptions upon tombstones, memoranda in family Bibles, and a variety of circumstances which are admitted for convenience, and from necessity. But in criminal prosecutions for bigamy, or in adultery where the offence depends upon the Defendant being a married man or woman, the marriage must be proven in fact, and a conviction cannot be had upon the admissions of the Defendant. 7 John. 314, People vs. Humphrey.
The Statute laws of any of the States of the Union can only be proven by the production of printed copies thereof, purporting to be published under the authority of the government where they were passed, or upon proof that they are commonly admitted and read in evidence in the courts of such State. Comp. Stat. 682, Sec. 56. Statutes passed in 1852 raise no presumption of what the law was in 1845. The production of the Statutes of another State may raise the presumption that the law has continued to be the same as at the date of their passage, until an amendment or appeal is shown, but it cannot run retrospectively.
The conviction is set aside, and the indictment quashed.