143 Ala. 88 | Ala. | 1904
“Incest,” says Mr. Bishop, “where the statutes have not modified its meaning, is sexual commerce, either habitual or in a single instance, and either under a form of marriage or without it, between persons too nearly related in consanguinity or affinity to be
Section 4889 of the Criminal Code reads as follows: “If any man or woman, being ivithin the degrees of consanguinity or relationship within which marriages are declared by law to be incestuous and void, and knowing of such consanguinity or relationship, intermarry, or have sexual intercourse together, or live together in adultery, each of them must, on conviction, be imprisoned in the penitentiary for not less than one, nor more than seven years.”
The degrees of consanguinity or relationship within which marriages are declared incestuous are fixed by section 2837 of the Civil Code. One of these degrees is, as known in common parlance, that of step-father and step-daughter. The language is that “No man shall marry the daughter of his wife.”
It cannot he seriously doubted that the relation of consanguinity or affinity between the parties must exist at the time the act of intermarrying or sexual intercourse occurs. If the relationship, previous to the act of marrying or sexual commerce takes place, has ceased to exist, then the act of intermarrying or sexual intercourse is not incestuous, however offensive it may appear to good morals or punishable as a crime under other criminal statutes.
In the present case, it appears that, at the time of the sexual act or acts between the defendant and the woman, Maud Alice Freeland, the mother of Maud was dead. That, at the date of her death, she was the wife of defendant and left surviving her a child or children, issue of their marriage, who are now living. The point is made that, upon the death of the wife and mother, the relation of affinity between defendant and Maud was dissolved.
It must be admitted that the case of Johnson v. State, (20 Tex. App. 609) which arose under statutes very similar to ours, fully sustains the contention. In that case, as here, it appeared that issue of the marriage survived the wife and were living at the time the sexual intercourse was had between the step-father and his step
Since the decision of Mounson v. West, (1 Leonard 88) by the Court of Common Pleas of England, during the reign of Elizabeth, it has been regarded as settled, by some of the ablest courts in this country, that, after the death of the wife, living issue of the marriage continues the affinity between the husband and her blood relations. — Jaques v. Commonwealth, 10 Gratt, 690; Dearmond v. Dearmond, 10 Ind. 191; Bigelow v. Sprague, 140 Mass. 425. See also cases collected in note to Chinn v. State, 11 L. R. A. p. 630.
This principle was recognized by this court in Pegues v. Baker, 110 Ala. 251, 254.
It must be now regarded as finally settled by this Court that a. witness may testify that the accused appeared to be angry or surprised. — Hainsworth v. State, 136 Ala-13 ; Thornton v. State, 113 Ala. 43. It is true this is an affirmative statement by the witness of the facial expression of the accused as it appeared to him, but there is no gcod reason why the negative of the proposition may not be testified to, when the circumstances are such as would naturally produce anger or surprise and no sign or indication of either is shown by the accused. The question propounded to Dr. Baker, under the circumstances shown by him, was competent. So also was that portion of his answer responsive to the question competent and legal. If it be conceded that the other part of his answer, which was not responsive to the question, was incompetent, the motion to exclude the whole of his answer was not the proper way to eliminate it. — Davis v. State, 131 Ala. 10.
The objection to the question propounded to witness Griffin, calling for the contents of the note, on the ground that its loss or absence had not been sufficiently proven or accounted for to allow secondary evidence of its contents, should have been sustained. Non constat, this paper was not among those that had been destroyed by the witness — no search being made for it among those not destroyed. There is no merit in the other objections to this testimony.
Reversed and remanded.
