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ever great a degree. Nor will the mere living together of a man and woman as husband and wife under an invalid marriage, in the mistaken belief that it is valid, constitute this offense.

$ 713. “Lascivious carriage” — may be committed by wanton and lascivious acts of one person toward and against the will of another of the opposite sex. The statute was “meant," said Baldwin, J., "to include and suppress all those wanton acts, between persons of different sexes, flowing from the exer. cise of lustful passions, which are grossly indecent and unchaste, and which are not otherwise punished as crimes against chastity and public decency.”

$714. “Open and gross lewdness and lascivious behavior." Within this expression is a man who indecently exposes his person to a woman, and solicits her to sexual intercourse, and persists in the solicitation, against her opposition and remonstrance. So likewise is one who, intentionally and without excuse, exposes, in the house of another, his person to a girl eleven years old. $ 715, “Whoredom” - “ Whore." - A “whore” is a " “ ” A

a woman given to promiscuous commerce with men, usually for hire.6 The term “whoredom"

appears

to be less narrow. Within it has been held to be any single act of adultery between a married female and a male not her husband.

§ 716. “Lewdness”— differs in meaning both from “whoredom” and from "prostitution.” The court, in one case, not defining it, said: “The argument for the defendant, that the word • lewdness' in the statute applies only to the commonlaw offense of open and public indecency, cannot be supported. We have no doubt that it includes illicit sexual intercourse and the irregular indulgence of lust, whether public or pri

vate." 8

i Com. v. Catlin, 1 Mass. 8; S. v. Williams v. S., 64 Ind. 553, [31 Am. Jarvin, 12 Iowa, 499. See, however, R. 135.] S. v. Cagle, 2 Humph. 414

6 Sheehey v. Cokley, 43 Iowa, 183, 2 Com. v. Munson, 127 Mass. 459, [22 Am. R. 236; Fahnestock v. S., 102 (34 Am. R. 411.]

Ind. 156, 1 N. E. R. 372.] 3 Fowler v. S., 5 Day, 81, 84.

7 Rodebaugh v. Hollingsworth, 6 4 S. v. Millard, 18 Vt. 574, [46 Am. Ind. 339. D. 170.]

8 Com. v. Lambert, 12 Allen, 177, 5 Com. v. Wardell, 128 Mass. 52. 178. Compare with Com. v. Catlin, 1 And see S. v. Osborne, 69 Mo. 143; Mass. 8. See also S. v. Rye, 9 Yerg. 386.

$ 717. “ Public indecency,”- In Indiana, where there are no offenses at common law, these words were adjudged to be too indefinite in meaning to create an offense. Thereupon the legislature expressed its own sense of their signification by substituting for them a provision against the indecent exposure of the person in a public place. And Bicknell observes: “The term 'public indecency' was always held to apply especially to indecent exposures of the naked human body; and our statute, as amended, is substantially a re-enactment of a part of the common law.” 2

$ 718. Cohabitation under void marriage.- We have seen that one of these statutes is not violated by a cohabitation under a void marriage supposed to be valid. Probably none of them are.

II. THE PROCEDURE.

$ 719. Course of discussion.— We shall consider, first, the indictment; secondly, the evidence.

First. The indictment:

Previous explanations.— The explanations of the indictment in the last three chapters, and particularly the last, will serve in some measure for the present chapter.

Follow statute The rule, ordinarily sufficient, is that the indictment for this offense should cover the statutory terms, and it need not in general be much expanded beyond.”

$ 720. Marriage.- Under some of the statutes there is scope for the doctrines already considered 6 as to averring or negativing a marriage.?

3 721, “Together”-“With each other" § "

'— (Joint).Some of the statutes have the one, some the other, of these form of words. As in the offense treated of in the last chapter, so in this, the pleader must cover them by his allegations. And it is, at least by some, deemed legally impossible for one

1 Jennings v. S., 16 Ind. 335; 8. v. 69 Mo. 143; P. v. Colton, 2 Utah, 457; Huey, 16 Ind. 338.

[S. v. Stubbs, 108 N. C. 774, 13 S. E. ? Bicknell, Crim. Pr. 448, 449. R. 90; Com. v. Dill, 159 Mass. 61, 34 N. 3 Ante, 8 712.

E. R. 84,) and cases cited in subse* Çom. v. Hunt, 4 Cush. 49. And quent sections see ante, $ 666.

6 Ante, &$ 673, 687, 693, 700. 3 Post, 8 724; Williams v. S., 64 Ind. 75. v. Clinch, 8 Iowa, 401. 553, (31 Am. R. 135;] 8. v. Osborne, 8 Ante, $ 702.

party to commit this offense unless the other commits it also. Still,

Convictions several.— As in the offense explained in the last chapter, the one may be prosecuted without the other, or may even be convicted after the other is acquitted.'

$ 722, Time-(Continuando or not).-- This offense, like that treated of in the last chapter,' may be charged as continuing or not, at the election of the pleader.

$ 723. “Lewd, etc., person."-On a statute making punishable “lewd, wanton and lascivious persons in speech or behavior,” it is sufficient in allegation to say that at, etc., the defendant “was and still is a lewd, wanton and lascivious person in speech and behavior.”' 6

$ 724. Further of following statute.--In further illustration of the rule of following the statute,

Open and public.— It was in Tennessee held necessary to aver that the acts constituting the offense were openly and publicly committed.?

Specific acts.- Under a Missouri statute making punishable “every person, married or unmarried, who shall be guilty of open, gross lewdness or lascivious behavior," the simple following of the statutory words was ad judged good. This is believed to be the true doctrine, yet hardly consistent with an earlier case in the same state.10

$ 725. Secondly, The evidence:

Circumstantial evidence – is competent, and it may be sufficient; " but

Hearsay - such as rumor and neighborhood talk, is inadmissible.12

18. v. Byron, 20 Mo. 210; Delany v. S. v. Moore, 1 Swan (Tenn.), 136. P., 10 Mich. 241. And see Ashworth 8 S. v. Bess, 20 Mo. 419. V. S., 9 Tex. 490. For a sufficient 9 Ante, S 706 form, see S. v. Osborne, 69 Mo. 143; 10 Dameron v. S., 8 Mo. 494. P. v. Colton, 2 Utah, 457.

11 Peak v. S., 10 Humph. 99; [S. v. 2 Ante, $ 708.

Kirkpatrick, 63 Iowa, 554, 19 N. W. 3 S. v. Caldwell, 8 Bax. 576.

R. 660.) 4 Ante, $ 703.

12 Belcher v. S., 8 Humph. 63; Butt6 Hinson v. S., 7 Mo. 244.

ram v. S., 4 Coldw. 171. 6 Com. v. Parker, 4 Allen, 313.

504

OHAPTER XLIIL

INCEST.

8 726. Introduction. 727-730. Law of the offense. 731-736. The procedure.

$ 726. How chapter divided.-- We shall consider: I The law of the offense; II. The procedure.

I. THE LAW OF THE OFFENSE.

$ 727. How defined.- Incest, where the statutes have not modified its meaning, is sexual commerce, either habitual or in a single instance, and either under a form of marriage or without it, between persons too nearly related in consanguinity or affinity to be entitled to intermarry.' And, in this offense, illegitimate consanguinity has the same effect as legitimate.

Marriage voidable Toid.- Where the forbidden marriage is merely voidable, in the sense special to the matrimonial law, a cohabitation under it, before its nullity is judicially declared, is not a crime;) but a void marriage could give to the carnal commerce no protection.

1 Chick v. Ramsdale, 1 Curt. Ec. 34; v. S., 30 Ala. 521; Morgan v. S., 11 Ala. Griffiths v. Reed, 1 Hag. Ec. 195; 289; (Clark v. S., 39 Tex. Cr. R. 179, Blackmore v. Brider, 2 Phillim. 359; 45 S. W. R. 576; P. v. Lake (N. Y.), 17 Woods v. Woods, 2 Curt. Ec. 516; N. E. R. 146; S. v. Laurence, 95 N. C. Burgess v. Burgess, 1 Hag. Con. 384; 659.) (8. v. Guiton, 51 La. An. 155, 24 S. R. 31 Bishop, Mar., Div. & S., SS 104a, 784; S. v. Hertzes, 55 Minn. 464, 57 105, 115, 119, 320. In the English N. W. R. 205; Chinn v. S., 47 Ohio St. ecclesiastical courts, the first step 575, 26 N. E. R. 936, 11 L. R. A. 630; might be a criminal suit for the inS. v. Wyman, 59 Vt. 527, 8 Atl. R. cest, and then the punishment and 900; Norton v. S. (Ind.), 3 West. R. the nullity of the marriage would be 730; Shelly v. S. (Tenn.), 31 S. W. R. decreed together. See the English 492.]

cases just cited. 21 Bishop, Mar., Div. & S., § 315; * 1 Bishop, Mar., Div. & S., SS 105, Woods v. Woods, supra, at p. 521; S. 119. v. Schaunhurst, 34 Iowa, 547; Baker

2

$728. At common law.- At the time of the settlement of our country, incest, the same as common adultery and fornication, was punishable as an offense against the ecclesiastical laws, but it was not indictable in the common-law courts. It is not, therefore, indictable under our common law. But,

Under statutes. — Quite generally in our states, yet not absolutely in all," it is made a crime by statutes. And under many or all of the statutes, not only incestuous fornication or adultery is incest, but such also is an incestuous marriage, not requiring the added element of cohabitation.

$ 729. Knowledge of relationship.- Some of the statutes have the word “knowingly,” thereby expressly making a knowledge of the relationship an element in the offense. In the absence of this word or its equivalent, while such knowledge is not an affirmative element, and it need not be alleged in the indictment,& ignorance of the relationship is, by the Scotch

1 See the English cases cited to the Case, 1 Scotch Sess. Cas. (4th ser.), last section.

Just. 22, 2 Couper, 538. 2 Blackstone says: “In the year 3 Crim. Law, I, S 502; S. v. Keesler, 1650, when the ruling powers found 78 N. C. 469. See S. v. Smith. 30 La. it to their interest to put on the An. 846. semblance of a very extraordinary

48. v. Keesler, supra. strictness and purity of morals, not Cook v. S., 11 Gan 53, (56 Am. D. only incest and wilful adultery were 410;) Powers v. S., 44 Ga. 209; Com. made capital crimes, but also the re- v. Perryman, 2 Leigh, 717; Chanpeated acts of keeping a brothel, or cellor v. S., 47 Miss 278; S. v. Slaughcommitting fornication, were (upon ter, 70 Mo. 484; S. v. Peterson, 70 Me. a second conviction) made felony 216; P. v. Harriden, 1 Park. Cr. 344; without benefit of clergy. But at Attorney-General Broaddus, 6 the restoration, when men, from an Munf. 116; Baker v. S., 30 Ala. 521; abhorrence of the hypocrisy of the Howard v. S., 11 Ohio St. 328; U. S. late times, fell into a contrary ex- v. Hiler, Morris, 330. treme of licentiousness, it was not 68. v. Schaunhurst, 34 Iowa, 547; thought proper to resume a law of Gay v. S., 2 Tex. Ap. 127; Territory such unfashionable rigor. And these v. Corbett, & Mont. 50; (Simon v. offenses have been ever since left to S., 31 Tex. Cr. R. 186, 20 S. W. R. 399; the feeble coercion of the spiritual Simon v. S., 31 Tex. Cr. R. 196, 20 S. court, according to the rules of the W. R. 716.) canon law; a law which has treated 7 Williams v. S., 2 Ind. 439; Baumer the offense of incontinence, nay even v. S., 49 Ind. 544, [19 Am. R. 691; Rea adultery itself, with a great degree v. Harrington, 58 Vt. 181, 2 Atl. R. of tenderness and lenity; owing per. 475.] haps to the constrained celibacy of 8 Post, $ 733; S. v. Bullinger, 54 Mo. its first compilers.” 4 Bl. Com. 64, 142; Morgan v. S., 11 Ala. 289. See 65. Incest is indictable under the Delany v. P., 10 Mich. 241, 244; (Re common law of Scotland. McColl's Nelson, 69 Fed. R. 712.)

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