16 S.E.2d 504 | Ga. Ct. App. | 1941
1. "An accomplice is strictly defined as one who is associated with others in the commission of a crime, all being principals.' 1 Am. Eng. Enc. L. (2d ed.) 389. Participation in the commission of the same criminal act, and in the execution of a common criminal intent, is therefore necessary to render one criminal, in a legal sense, an accomplice of another. `Criminal intent is a necessary ingredient of crime and is essential *801 to render one an accomplice. It follows that where this element is absent, one is not an accomplice.'"
2. In the prosecution of the father for incestuous adultery, if the State's evidence of acts of incest is confined, as charged in the indictment, to times before the date the daughter reached the age of consent, the female is not an accomplice, and no corroboration of her testimony is necessary in order to support a conviction. Aliter if the female was over the age of consent at the time the act of sexual intercourse charged in the indictment was committed.
3. The evidence authorized the verdict finding the defendant guilty of incestuous adultery.
Our Code, § 26-5701, with reference to incestuous fornication and adultery provides: "Any person who shall commitincestuous fornication or adultery shall be punished by imprisonment and labor in the penitentiary for not less than one nor more than 20 years." (Italics ours.) With reference to adultery and fornication, the Code, § 26-5801, provides: "Anyman and woman who shall live together in a state of adultery or fornication, or of adultery and fornication, or who shall otherwise commit adultery or fornication, or adultery and fornication, shall be severally indicted, and shall be severally punished as for a misdemeanor; but it shall, at any time, be within the power of the parties to prevent or suspend the prosecution and the punishment by marriage, if such marriage can be legally solemnized." (Italics ours.) The Supreme Court, in reference to these sections, has said: "Nothing can be plainer than that the crime of incestuous fornication is, by our statute, not a joint offense. The words are `any person who shall commit incestuous fornication [or adultery].' By what rule of construction this can be made to mean, `if any two persons shall,' etc., we are unable to see. The very next section of the Code, section 4460, punishing fornication and adultery, does make a joint offense, and uses very different language. `Any man and woman who shall,' etc. It is hardly supposable that language so different should be used in almost the same sentence without a special intent. And there is great propriety in the distinction. The unnatural crime, prohibited in section 4459 [now § 26-5701], as experience shows, is generally the act of a man upon a woman, over whom, by the natural ties of kindred he has almost complete control, and generally he alone is to blame. There is a force used, which, while it can not be said to be that violence which constitutes rape, is yet of a character that is almost as overpowering. Indeed, if it were necessary to make out a case of mutual consent (and without this there is no joint offense), we think but few cases of this unusual crime would be punished."Powers v. State,
The defendant also contends that if the act of sexual intercourse took place between himself and his daughter, who was under the age of consent, the only conviction authorized by the evidence is for rape, as the female could not consent and the offense of rape can not coexist with adultery. The evidence here does not disclose violence or force. If any force at all was used by the defendant it was mere authority or influence. 2 Wharton's Criminal Law (12th ed.), 2424 (17). It is true, as stated inDavis v. State,
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.