State v. Herges

Collins, J. The defendant was indicted for tbe crime of incest, alleged to bare been committed prior to tbe passage of Laws 1898, cb. DO, and after trial and conviction a report of tbe case was certified np for our decision, under tbe provisions of 1878 Gf. S. cb. 117, § 11. The claim is made in defendant’s behalf that under tbe laws of this state as they existed at the time specified in tbe indictment incest was not a crime. Prior to tbe amendment of 1893, section 259 of tbe Penal Code read as follows: ‘'Incest. When persons within the degrees of consanguinity within Avbich marriages are declared by law incestuous and void, intermarry or commit adultery or fornication with each other, each of them is punishable by imprisonment in tbe state prison for not more than ten years.” It is contended by defendant’s counsel that, as tbe only statutes which bear upon tbe subject — one prohibiting the contract of marriage between parties who are nearer of kin than first cousins, computing by the rules of the civil law, whether the half or the whole blood, (1878 Gf. S. ch. 61, § 3;) the other pronouncing such marriages void, (1878 Gf. S. ch. 02, § 1)— fail to declare them incestuous, the offense cannot be committed; it being purely statutory. Incest is defined as the carnal copulation of a man and woman related to each other in any of the degrees within which marriage is prohibited by law. A marriage between persons within the specified degrees of consanguinity must necessarily be incestuous under the law, and no use of that precise word or statutory declaration to that effect was needed. The defendant is liable to the punishment prescribed in Penal Code, § 259, and the case is remanded for further proceedings.