David v. People

Mr. Justice Scott delivered the opinion of the court: Plaintiff in error complains that the verdict is not sustained by the evidence. With this contention we can not agree. The case has been twice tried. The prosecutrix testified On both trials. A transcript of her testimony given on the first trial was offered and read in evidence on the second trial. Her testimony on each trial contains many contradictions and inconsistencies in reference to immaterial matters, but upon the material contested questions, namely, did some man have sexual intercourse with her in Hizer’s woods, and whs that man William David, her testimony is unequivocal and consistent with her statements made upon being detected in the criminal act and with other facts and circumstances proven on the trial in reference to what took place in these woods, and she is amply corroborated by Webster, and to some extent by Malone. Opposed to this testimony was that of the defendant, corroborated, so far as the alibi set up by him is concerned, by the testimony of his mother. Evidence was offered tending to impeach the truth and veracity of the accused, his mother and Webster. It was peculiarly the province of the jury to determine whether or not the testimony was sufficient to establish the guilt of the defendant beyond a reasonable doubt. With their conclusion, under the evidence in this case, we will not interfere. It is also argued that the testimony in the cause tends to show that rape was committed, and the court below was asked by the accused to instruct the jury that in order to constitute the crime of incest it is essential the proof should show that the “sexual intercourse is accomplisbed without force by the defendant and with the consent of the prosecuting witness.” This instruction was refused. . Our statute provides that “persons within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who shall intermarry with each other, or who shall commit adultery or fornication with each other, or who shall lewdly and lasciviously cohabit with each other, shall be imprisoned in the penitentiary not exceeding ten years,” and the instruction offered is based on the theory that the crime of incest, under the statute, is a joint one, requiring the. consent -of both parties to the fornication, and that where the act is accomplished by force and without the consent of the female the male is guilty of rape and not of incest, and stress is put upon the .fact that the statute is in the plural, and against persons who commit fornication “with each other.” Incest, as it is made punishable in the various States of the Union, is defined by statutes. Some apparent conflict in the authorities grows out of the fact that there is a variance in the several statutes on this subject; but there is a hopeless conflict in adjudicated cases which have been determined by the courts of last resort in States having statutes defining incest in substantially the same words as are used in our statute. In DeGroat v. People, 39 Mich. 124, State v. Jarvis, 20 Ore. 437, and Yeoman v. State, 21 Neb. 171, under statutes almost identical in words and identical in meaning with our own, it was held, that the crime of rape by forcible ravishment and incest cannot be committed by the same act, but that of incest requires the concurring assent of both parties. To the same effect are other cases decided by the courts of other States under statutes differing somewhat from our own. On the other hand, under statutes in substance precisely as that of Illinois, it has been held in Smith v. State, 108 Ala. 1, People v. Kaiser, 119 Cal. 456, and State v. Nugent, 20 Wash. 522, that.where the parties to sexual intercourse are within the prohibited degrees, the male may be convicted of incest even though he accomplish the act by force and without the consent of the female. In Iowa the language in the statute is as follows: “Or if any person being within the degrees of consanguinity or affinity in which marriages are prohibited by this section, carnally know each other they shall be deemed guilty of incest.” In State v. Hurd, 101 Iowa, 391, this question arose under the Iowa statute above quoted, and although the language of the statute requires carnal knowledge by each of the other, the court in that case determined that the consent of the female is not necessary to constitute the crime of incest in the male, and held that in the earlier Iowa case- of State v. Thomas, 53 Iowa, 214, which is relied upon by the Oregon court in the case of State v. Jarvis, supra, the question here presented did not properly arise. In our judgment the better reasoning supports the conclusion that the consent of the female is not necessary to constitute the crime of incest by the male. It is true that our statute is written in the plural, but the third paragraph of section 1 of chapter 131 (Hurd’s Stat. 1901,) provides that “words importing the singular number may extend and be applied to several persons or thing's, and words importing the plural number may include the singular,” so that no violence is done to the language of the section denouncing incest by holding that it applies to any person who shall have sexual intercourse with another who is within the prohibited degrees. The things which the law is intended to punish are the purpose and desire to have, and the act of having, sexual intercourse with another who is related to the first as specified in the statute. The mind of the male is equally criminal and his act equally deplorable, unnatural and detestable whether the female consents or not. The fact that she consents adds nothing to his moral and legal turpitude. It is his intent and his act that the law punishes him for. It was nob intended to punish him because she consented to the fornication, but because he desired and participated therein. Nor is the persuasion or enticement of the female by the male an element of the crime, because she is equally guilty with him if she consents, however reluctantly and no matter under what persuasion or inducement, to the fornication, and his legal guilt would not be the less if she should entice and persuade him to join her in the commission of this crime. The accused asked and the court refused the following instruction: “You are instructed by the court that the prosecution can rely upon but one act of intercourse in this case for the purpose of asking a conviction, and that is, the one that is alleged to have occurred in the Hizer woods on the 18th day of October, A. D. 1902.” This action of the court is said to have been prejudicial to the defendant below, for the reason that the prosecutrix testified that William David had had sexual intercourse with her on two earlier occasions, and it is suggested that the refusal of the court to give this instruction left the jury free to convict the defendant on account of the girl’s testimony in reference to the earlier occurrences, and amounts to putting him on trial for two or more felonies at the same time. We have carefully examined this record, including the instructions given, and are satisfied from this examination that the jury understood that the charge upon which the prosecution sought a conviction and upon which they were trying the defendant was that of having committed incest in the Hizer woods on the later occasion. If, however, the accused desired to have the court require the prosecution to elect of record which of the occurrences testified to by the prosecuting witness the People would rely upon in seeking a conviction, the proper practice was to move that the- court require an election, and if this motion was overruled, the propriety of requiring an election could then be presented to this court in the event of a conviction below. The court could not, by an instruction, make an election for the prosecuting officer. In the refusal of this instruction there was, therefore, no error. The judgment of the circuit court will be affirmed. Judgment affirmed.