95 N.C. 659 | N.C. | 1886
(State v. Keesler,
The indictment alleges that the defendant "wilfully, unlawfully and feloniously did have carnal intercourse with one Hasty Laurence, the daughter of him, said Whit, Laurence, and commit the crime of incest with his daughter, the said Laurence, contrary," c.
Upon the trial of the plea of not guilty before the jury, evidence was introduced to show that sexual intercourse had taken place (660) between the parties, and that the women on whose body the offence was committed, was the natural and not legitimate daughter of the defendant, who, however, intermarried with her mother some six months after the daughter's birth, and that the latter was recognized by defendant as his daughter.
The defendant's counsel requested the Court to instruct the jury that the evidence did not sustain the allegation in the indictment, and the variance being essential, they must acquit. This was refused, and a verdict being rendered against the defendant and judgment pronounced thereon, he appealed to this Court.
The contention is that the statute does not extend to illegitimate offspring, and if it did, the indictment must be construed as charging the forbidden intercourse between persons who sustain a lawful relation to each other. The act in question was passed soon after, and we suppose in consequence of, the ruling in State v. Keesler,
It is obvious that the legitimacy of birth in one of the offending parties is not, and ought not to be, and essential ingredient in the crime. *543 The act prohibits the intercourse between those who are in fact, with or without marriage, related in those degrees by consanguinity; and this relationship being proved, the penalty attaches.
In Baker v. State,
As thus construed, it was unnecessary to aver the status of the woman, as born in or out of wedlock, since the statute applies to both, and the indictment, in pursuing the words used in it, is sufficient.
There is no error, and this will be certified to the end that the Court below proceed to judgment.
No error. Affirmed.