70 Mo. 484 | Mo. | 1879
At the March term of the Clay circuit court, the defendant was indicted under section 6, Wag.
The attorney-general contends that,-although this may be, yet that the common law in regard to incestuous marriages was then in force in this State. The section of the marriage act which forbade and declared incestuous and void, the marriages therein named, was in effect, a repeal of the common law. It covered the whole ground. In England there was a controversy between the temporal and the ecclesiastical courts, the latter greatly extending the impediments to marriage, and a statute was passed in the reign of Henry VIII to restrain the usurped power of the clergy, and providing “that no reservation or prohibition, God’s law excepted, shall trouble or impeach any marriage without the levitical degrees.” Even under this statute a marriage between a man and the sister of his deceased wife was incestuous. It was so when, in 1816, we adopted the common law, and if our act did not repeal the- common law, such a marriage is yet incestuous; but it would astonish the bar of this State if we should decide that a marriage between a man and a sister of his deceased wife is incestuous and void. The act of our Legislature declared certain marriages incestuous and void, and others not included in the terms of the act could not be incestuous here.
The act declaring incestuous and void marriages between parents and children, nephews and nieces, &c., continued in force from 1835 to 1866, a period of thirty-one years, and, in the latter year, was amended by striking out the word “ incestuous,” and this we consider a clear indication of legislative intent, that such marriages were not thereafter to be deemed incestuous under the laws of the State, however they might be regarded by the law of God. If the section of the marriage act under consideration repealed or superseded the common law on the subject of incestuous marriages, its repeal would not revive the common law. Section 3. Wag. Stat., 894, provides: that
Until the statute of Henry VIII, supra, was enacted, neither the temporal nor the ecclesiastical courts held marriages between persons within the levitical degrees absolutely void, and even after that statute . was passed the temporal courts did not undertake to say that any marriage was void unless incestuous according to the law of nature. The section, therefore, under which defendant was indicted, evidently referred to our marriage act which declared such marriage to be both incestuous and void. Incest was not a crime at common law. Persons within the prohibited degrees marrying each other, were not indictable for so doing. The only legal consequence was that the marriage might be annulled, and the issue bastardized. Our last General Assembly substituted for section 6, under which defendant was indicted, section 1538, Revised Statutes of 1879, page 268, which reads as follows : “ Persons within the following degrees of consanguinity, to-wit: Parents and children, including grand parents and grand children 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 with each other, or who shall commit adultery or fornication with each other, or who shall lewdly or lasciviously cohabit with each other, shall be adjudged guilty of incest, and be punished by imprisonment in the penitentiary not exceeding seven years.” This cures the defect which, as we have seen, existed' in our criminal code when the defendant was indicted, and confirms our opinion that a legislative act was necessary
