ELIJAH. WILLIAMS was convicted of incest, in the Adams Circuit Court, upon the following charge in an indictment.
“ Elijah Williams, late of said county, on the first day of December, in the year of our Lord one thousand eight hundred and. forty-nine, at the county of Adams aforesaid, unlawfully did have sexual intercourse with his daughter, Elizabeth Williams, the said Elizabeth then and there knowing that she, the said Elizabeth, was his, the said Elijah’s, daughter,” &c.
The indictment is claimed to be predicated upon section 42 of the R. S., which enacts that “if any father shall have sexual intercourse with his daughter, knowing her to be such,” he “ shall be deemed guilty of incest,” &c.
This indictment is bad in not alleging that Williams had the intercourse with his daughter, “ knowing her to be such,” unless the word unlawfully is equivalent to such allegation. We think it is not. Williams might have had the intercourse by way of rape, adultery, or fornication, either of which might have been unlawful, and he still been ignorant that such intercourse was with his daughter. See Judah’s case, 38 chap, of Gen., 15 to 26 ver. inclusive.
This defect, being available on demurrer or motion to quash, is not cured by verdict. 1 Chit. Cr. L. 662.
The judgment is reversed. Cause remanded, &c.