20 Or. 437 | Or. | 1891
— In State v. Jarvis, 18 Or. 360, this defendant had been convicted of incest under an indictment charging him with both the crimes of rape and incest, but this court reversed the judgment on the ground that the conviction was had on the uncorroborated testimony of the prosecutrix, who was an accomplice in the commission of the crime. After the case was remanded to the court below, it would seem another indictment was found against the defendant, charging him with the crime of incest alone, upon which he was tried and convicted, from which he appeals. The first assignment of error necessary to notice is in the admission of the testimony of Mrs. Dr. Murray. The testimony of this witness was to the effect that three or four or five years before the trial in the court below, she was consulted professionally by the prosecutrix, whom on an examination she found suffering from some irritation of the vagina caused by some recent violence. This evidence was clearly irrelevant. It did not in any way tend to prove the guilt of this defendant. It is possible the evidence might have been competent had the charge against defendant been rape and not incest. It could only be competent under the theory that the prosecutrix had been forcibly ravished, but when, as in this case, the crime charged is incest, it could in no way tend to prove that defendant was guilty as charged. Rape and incest are two distinct crimes, and what would be competent evidence in the one, would not in the other. What has already been said requires the reversal of this case, but there was another question raised in the argument, which it is proper for us to consider, in view of the probability of another trial in the court below.
In the case of the State v. Jarvis, supra, in which this appellant was defendant, it was held that “in a trial for the
It is admitted, in the case at bar, that the conviction was had upon the uncorroborated testimony of the prosecutrix, but it is sought to avoid the rule announced in the case above cited, by claiming that she was compelled by force and threats to submit to the embraces of defendant, and was not, therefore, a willing participant in the commission of the crime, and not an accomplice. The prosecutrix testified that the incestuous intercourse commenced in 1884, when she was 16 years old, and continued as often as twice a week and sometimes oftener until April, 1889; that at no time did she willingly consent, but was compelled by force to submit; that at one time defendant pointed a pistol at her and said he would kill her if she refused; at another time he threatened her with an ax; and at another, with a board; that she did not complain to any one because defendant said he would shoot her if she told anybody about the matter. It was argued for the appellant that the crime of incest requires the concurring assent of both parties, and that under the facts in this case defendant was guilty of rape, if guilty of any crime, and could not be convicted of the crime of incest. The crime of incest was not indictable at common law, but is so only by statute. (4 Bl. Com. 64; Bishop on Stat. Cr. § 728.) To the statute alone, then, must we look for a definition of the crime and for a solution of the question in this case. By section 1873, Hill’s Code, it is provided: “If any persons being within the degrees of consanguinity within which marriages are prohibited by law, shall intermarry with each other, or shall commit adultery or fornication with each other, such persons or either of them, upon conviction thereof, shall be punished,” etc. It will be noticed that the language of the statute is “ with each other,” which necessarily implies a concurrent
Cooley, J., speaking for the court, said: “Fornication, when the element of near relationship makes it incest, may be an offense equally detestable and heinous, but it still lacks the distinguishing characteristic of rape. The one is accomplished by the impelling will of one person, and the other by the concurrent assent of two.” In Baumer v. State, 49 Ind. 544, 19 Am. Rep. 691, the statute provided “if any stepmother aud her step-son shall have sexual intercourse together,” etc., and it was held that the act must be joint, and one of the parties cannot be guilty unless the other is also, and the acquittal of one is a bar to the trial of the other. So in State v. Thomas, 53 Iowa, 214, under a statute which provided that “if any persons within the prohibited degrees * * * carnally know each other, they shall be deemed guilty of incest,” it was held that the crimes of rape and incest
Counsel for appellant contended on the hearing that the indictment is insufficient in not alleging that the illicit intercourse was by the concurring assent of both parties. This question seems to have been raised in this court for the first time and perhaps the indictment is sufficient after judgment, but the logical conclusion from the authorities heretofore cited with approval is that the indictment in cases of this kind should allege the act as joint since it is only by the concurring assent of both parties that the crime can be committed.
The judgment of the court below is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.