CHAPTER XLIIL

INCEST.

§ 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.2

Marriage voidable-Void.- 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; Griffiths v. Reed, 1 Hag. Ec. 195; Blackmore v. Brider, 2 Phillim. 359; Woods v. Woods, 2 Curt. Ec. 516; Burgess v. Burgess, 1 Hag. Con. 384; (S. v. Guiton, 51 La. An. 155, 24 S. R. 784; S. v. Hertzes, 55 Minn. 464, 57 N. W. R. 205; Chinn v. S., 47 Ohio St. 575, 26 N. E. R. 936, 11 L. R. A. 630; S. v. Wyman, 59 Vt. 527, 8 Atl. R. 900; Norton v. S. (Ind.), 3 West. R. 730; Shelly v. S. (Tenn.), 31 S. W. R. 492.]

21 Bishop, Mar., Div. & S., § 315; Woods v. Woods, supra, at p. 521; S. v. Schaunhurst, 34 Iowa, 547; Baker

v. S., 30 Ala. 521; Morgan v. S., 11 Ala. 289; [Clark v. S., 39 Tex. Cr. R. 179, 45 S. W. R. 576; P. v. Lake (N. Y.), 17 N. E. R. 146; S. v. Laurence, 95 N. C. 659.]

31 Bishop, Mar., Div. & S., §§ 104a, 105, 115, 119, 320. In the English ecclesiastical courts, the first step might be a criminal suit for the incest, and then the punishment and the nullity of the marriage would be decreed together. See the English cases just cited.

41 Bishop, Mar., Div. & S., S$ 105,

119.

§ 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,1 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

doctrine,' and by the principles of our own law, though the question seems not to have been directly adjudicated, a good defense, on the ground of mistake of fact.2

§ 730. Attempts (Solicitations). There may be an indictable attempt to commit incest, though the act must proceed far enough. On principle, a solicitation not responded to may constitute an attempt,- a proposition denied in one case. But this case, and the question generally, are sufficiently explained in "Criminal Law."5

II. THE PROCEDURE.

§ 731. Previous expositions.-Incest being either an unlawful marriage, therefore within the principles explained in the chapter on polygamy, or a particular form of fornication or adultery, consequently within the expositions of the last four chapters, the reader has only to turn to those chapters to find answered most of his inquiries under the present head.

§ 732. Following statute.— The leading rule for all indictments on statutes, to cover in allegation their terms, is the principal one in this offense. Thus,—

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Averring relationship.-Under the statutory words, “if any father shall have sexual intercourse with his daughter knowing her to be such," it is not sufficient to allege that the defendant, A., "unlawfully did have sexual intercourse with his daughter B., the said B. then and there knowing that she, the said B., was his, the said A.'s, daughter." A.'s knowledge is not covered by "unlawfully," nor does it otherwise appear. But where the expression in the statute was, "within the degrees of consanguinity within which marriages are prohibited or de11 Alison, Crim. Law, 563; 1 Hume, offense we saw under the title AdulCrim. Law (2d ed.), 448. tery. Ante, § 661; Noble v. S., 22

2 Crim. Law, I, §§ 301-310; ante, Ohio St. 541. $$ 596a, 663.

P. v. Murray, 14 Cal. 159; McColl's Case, 1 Scotch Sess. Cas. (4th ser.), Just. 22, 2 Couper, 538; [P. v. Gleason, 99 Cal. 359, 33 Pac. R. 1111.] 4 Cox v. P., 82 Ill. 191.

"Crim. Law, I. Introduction to 7th ed., the long note, $$ 764, 768d, 772a. The carnal act.- What is the carnal act necessary to the substantive

6 S. v. Bullinger, 54 Mo. 142; Baumer v. S., 49 Ind. 544, [19 Am. R. 691;] Gay v. S., 2 Tex. Ap. 127; [S. v. Brown, 47 Ohio St. 102, 23 N. E. R. 747; S. v. McGilvery, 20 Wash. 240, 55 Pac. R. 115; S. v. Guiton, 51 La. An. 155, 24 S. R. 784; Porath v. S., 90 Wis. 527, 63 N. W. R. 1061.]

7 Williams v. S., 2 Ind. 439.

clared by law to be incestuous and void," it was adjudged adequate to aver that the defendant "did commit the crime of fornication" with one B., his daughter. Under the Illinois statute the allegation that the defendant A. did the criminal act on the person of B., the said B. then and there being the daughter of him, the said A., was held to be adequate as to the relationship.2

§ 733. "Knowingly."— We have already seen that the word 'knowingly," if in the statute, must be in the indictment, otherwise it need not be.

Now,

Both knowing-Joint or several.—If, as some deem, or as under some statutes, the guilt of both parties is essential to that of either one, the knowledge of both, where the statute requires both to have it, must be alleged. But where the offense may be proceeded against as several, and one may be guilty without the other, the knowledge of the defendant alone need be averred."

§ 734. Continuando or not.- Where, by the terms of the statute or its interpretation, one carnal act constitutes the offense, it cannot be charged as continued through a specified number of years; for so the count would be double. But doubtless there are statutes under which this form of averring the time will be good.

$735. Proof of relationship.-It has been held, doubtless correctly, that on an indictment for incest the relationship and pedigree of the parties may be proved by reputation or by the defendant's confessions.10

1 Hicks v. P., 10 Mich. 395; [P. v. Kaiser, 119 Cal. 456, 51 Pac. R. 702; S., De Puy v. Evans, 88 Wis. 255, 60 N. W. R. 433.]

2 Bergen v. P., 17 Ill. 426, [65 Am. D. 672;] S. P., Hicks v. P., 10 Mich. 395. See also Howard v. S., 11 Ohio St. 328; Noble v. S., 22 Ohio St. 541; Hutchins v. Com., 2 Va. Cas. 331, 332; Attorney-General v. Broaddus, Munf. 116; [Waggoner v. S., 35 Tex. Cr. R. 199, 32 S. W. R. 896.]

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3 Ante, §§ 729, 732. It is so also in simple adultery. Com. v. Elwell, 2 Met. 190, [35 Am. D. 398.]

Ante, § 660; S. v. Thomas, 53 Iowa, 214; De Groat v. P., 39 Mich. 124. 5 Baumer v. S., 49 Ind. 544, [19 Am. R. 691.]

❝ Powers v. S., 44 Ga. 209,

7 Baker v. S., 30 Ala. 521; Morgan v. S., 11 Ala. 289, 290.

8 Barnhouse v. S., 31 Ohio St. 39. And see S. v. Temple, 38 Vt. 37; S. v. Glaze, 9 Ala. 283.

9 Ewell v. S., 6 Yerg. 364, [27 Am. D. 480;] S. v. Bullinger, 54 Mo, 142, 144. See 1 Bishop, Mar., Div. & S., §§ 546548.

10 P. v. Jenness, 5 Mich. 305; Morgan

Some other questions of evidence have been decided in these cases; but relating simply to the sufficiency of the proofs, or not involving principles special to this offense.1

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