263 S.W. 95 | Mo. | 1924
Lead Opinion
Joseph Bartley was convicted in the Circuit Court of Callaway County of falsely and maliciously accusing a female of incest. On a writ of error, the Kansas City Court of Appeals affirmed the conviction. Judge BLAND deeming the opinion of the court to be in conflict with certain previous decisions of the Supreme Court, the case was certified and transferred to this court.
The amended information, based on Section 3612, Revised Statutes 1919, charges that Bartley falsely and maliciously imputed to Grace A. T____ the crime of incest, by falsely and maliciously speaking to Ed. Love certain words by which he meant and was understood to mean that he, Bartley, had had sexual intercourse with said Grace A. T____, the said Grace A. T____ being the niece of the said Joseph Bartley. A trial was had, *61 resulting in a verdict of guilty and assessing the defendant's punishment at a fine of $400.
Bartley is a half-brother of the mother of Grace A. T____. They are, therefore, uncle and niece of the half blood. Section 3511, Revised Statutes 1919, defining incest, reads:
"Persons within the following degrees of consanguinity, to-wit: Parents and children, including grandparents and grandchildren of every degree, brothers and sisters of the half as well as of the whole blood, uncles and nieces, aunts and nephews, who shall intermarry, or who shall commit adultery or fornication with each other, or who shall lewdly and lasciviously cohabit with each other, shall be adjudged guilty of incest, and be punished by imprisonment in the penitentiary not exceeding seven years."
Section 7299, Revised Statutes 1919, prohibiting marriage between certain relatives, reads:
"All marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as of the whole blood, and between uncles and nieces, aunts and nephews, first cousins, white persons and negroes, white persons and Mongolians, are prohibited and declared absolutely void, and this prohibition shall apply to illegitimate as well as legitimate children and relatives."
Falsely and maliciously to accuse any female of incest is a misdemeanor. [Sec. 3612, R.S. 1919.]
The majority opinion of the Court of Appeals holds that the words "uncles and nieces," as used in the statute (Sec. 3511, supra), includes uncles and nieces of the half as well as of the whole blood. The opinion cites State v. Reedy,
We must, therefore, look to the statute for the definition of incest. Are uncles and aunts of the half blood, as well as of the whole blood, within the prohibited degrees of relationship? Criminal statutes are to be construed strictly; liberally in favor of the defendant and strictly against the State, both as to the charge and the proof. No one is to be made subject to such statutes by implication. Where one class of persons is designated as subject to its penalties, all others not mentioned are exonerated. [State v. Jaeger,
After quoting Sections 3511 and 7299, Revised Statutes 1919, supra, Judge BLAND, in his dissenting opinion, said: "Both of these statutes mention brothers and sisters of the half as well as the whole blood. It is apparent that the Legislature in enacting these statutes had in mind relationships of the half as well as the whole blood, and if it intended the statutes to cover aunts and nieces of the half blood, why did it not say so? I think that the well-established canon of statutory construction,expressio unius est exclusio alterius, applies to these statutes. When the Legislature mentioned brothers and sisters of the half blood it necessarily excluded all other relationships of the half blood."
We concur in Judge BLAND's opinion. The court erred in overruling the demurrer to the evidence. The judgment is reversed. Railey, C., concurs.
Addendum
The foregoing opinion of HIGBEE, C., is adopted as the opinion of the court. All of the judges concur.