227 N.W. 830 | Iowa | 1929
This is a case of novel impression in this court. There is but one question to be answered. Is the term "half sister" included in the term "sister," as found in the statute defining void marriages? Section 10445, Code of 1927. Stating the question presented in another form: Does the indictment charge a crime (incest), as defined in Section 12978, Code of 1927?
This court recognizes the rule that a conviction for crime will not be affirmed where no crime is charged in the indictment, irrespective of the diligence of the appellant in pointing out the defect to the trial court. State v. Daniels,
We first turn to the statutes of Iowa which have reference to the matter involved in the case at bar. Section 12978 provides:
"If any persons, being within the degrees of consanguinity or affinity in which marriages are declared by law to be void, carnally know each other, they shall be guilty of incest, and imprisoned in the penitentiary not exceeding twenty-five years."
What degrees of consanguinity or affinity are included? SeeState v. Andrews,
"Marriages between the following persons shall be void: 1. Between a man and his * * * brother's daughter or sister's daughter." (Italics by the writer.)
It is well at this point to visualize the background of the law of incest. It found its origin in the Mosaic Law, and it is sufficient to read Verse 11, Chapter 18, of Leviticus: "The nakedness of thy father's wife's daughter, begotten of thy father, she is thy sister, thou shalt not uncover her nakedness." This is one of the several provisions defining and forbidding incest, and constitutes one of the injunctions under the Mosaic Law, for it is commanded in Deuteronomy, Chapter 8, Verse 2, "And thou shalt remember all the way which the Lord thy God led thee;" and the test of that remembrance is "whether thou wouldest keep his commandments, or no." As instances of the violation of these Mosaic Laws, we need but cite the names of Lot, Abimelech, Nahor, Reuben, Amram, Judah, and Amnon.
These commandments of the Mosaic Law found their way to the Christian church at Rome, and were later adopted by the ecclesiastical courts of England and became a part of the ecclesiastical law. Subsequently, statutes were enacted by Parliament which were based on the ecclesiastical table of degrees established by Archbishop Parker in 1563. For further study and investigation, see Annotation L.R.A. 1916C 690.
The statutes governing this subject as enacted by the legislature of the states of this Union, although not altogether uniform, are to a large extent copied from the English statutes. It *135 may further be stated that the text-writers on this subject quite uniformly assert that the incestuous prohibition applies to near relatives, whether by the half blood or the whole blood, and whether legitimate or illegitimate. See Keezer on Marriage and Divorce (1923), Section 110; 1 Schouler on Marriage, Divorce, Separation and Domestic Relations (1921) 22, Section 16; 2 Nelson on Divorce and Separation (1895), Section 710; 1 Bishop on Marriage, Divorce and Separation (1891), Section 748. All of these eminent writers recognize and state that the relation by half blood is in the same category as the relation by whole blood, and Bishop, supra, adds:
"* * * so that, for example, it is incestuous for a man to marry the daughter of his brother of half blood, or the daughter of his half sister."
In an early English case, Butler v. Gastrill, Gilbert's Reports 156 (25 Eng. Reprint 110), decided in 1721, it is said:
"And when we consider who are prohibited to marry by theLevitical Law, we must not only consider the mere words of the law itself, but what, from a just and fair interpretation, may be deduced from it * * *."
See, also, Regina v. Inhabitants of Brighton (Eng. 1861), 1 B. S. 447 (121 Eng. Reprint 782).
In the matter of construing a criminal statute, we may quote the language of one of the latest cases decided by the Supreme Court of the United States (April 22, 1929), wherein it is said:
"We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." Roschen v. Ward,
We now ask what has been the attitude and the interpretation given by our sister states on statutes similar to the enactment on the subject in Iowa. Probably the leading case, which had its finality in the Supreme Court of Vermont in 1887, is State v.Wyman,
"* * * but the generally understood significance of the word `brother,' as used in the common affairs of life, and as defined by the lexicographers of recognized authority, should be adopted in the construction of the statute."
The case at bar involves the word "sister," and the definition given in Webster's New International Dictionary reads:
"A female * * * considered in her relation to another person * * * having the same parents (whole sister), or one parent in common (half sister)."
In Commonwealth v. Ashey (1924),
In Shelly v. State (1895),
The oldest American decision of this character that has been called to our attention is People v. Jenness (1858),
"The charge is sexual intercourse between persons within the degrees of consanguinity within which marriages are prohibited. By reference to the statute prescribing these degrees * * * it will be seen that no man is permitted to marry his sister's daughter, * * * and we think it quite clear that such marriages are equally prohibited, whether the parties or their parents are * * * of the whole or the half blood."
In the case of Simon v. State (1892), 31 Tex. Cr. 186 (
In Commonwealth v. Reigel (1913), 22 Pa. Dist. 903, the facts disclose that the defendant had intercourse with a female who was the half sister of his father, having the same mother. It is said:
"The language of a penal statute is to be understood, if possible, in its ordinary popular sense: * * * `Brother,' `sister,' these words include the half blood. In reason and according to the weight of authority * * *." (Citing cases.)
The case of Burdue v. Commonwealth (1911),
"It is true that the compilers of our Code inserted the qualifying words just stated [half blood]. We incline to the opinion that `brother' and `sister,' as used, would include brother and sister of the half blood without the qualifying words of the Articles of the Code; that, as relates to the crime charged, the half blood are meant equally with the whole blood."
In State v. Reedy (1890),
"The language employed by the legislature is to be interpreted according to its common meaning; and when the terms `uncle' and `niece' are viewed in that light, they will include the half brother of the father and the daughter of a brother of the half blood."
We will not quote further from decisions of our sister states, *139
but see State v. Harris (1908),
In conclusion, it may be said that no decision of any court of last resort of the American Union has been called to our attention which supports the contention of the appellant in the instant case.
The judgment entered by the trial court is — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, and KINDIG, JJ., concur.