Brown v. State

• Decision Date: 06 March 1900
• Citation: Brown v. State, 42 Fla. 184, 27 So. 869 (Fla. 1900)
• Parties: BROWN v. STATE.[1]
• Court: Florida Supreme Court

27 So. 869

42 Fla. 184

BROWN v. STATE.^[1]

Florida Supreme Court

March 6, 1900

Error to circuit court, Polk county; William A. Hocker, Judge.

Isaac Brown was convicted of crime, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Motions in arrest of judgment and rulings thereon are parts of the record proper, and an appellate court will not review a ruling upon such motion when the motion and ruling are evidence to it only by bill of exceptions.

2. Where an indictment wholly fails to state a criminal charge against a defendant, he may take advantage of such fatal defect primarily in an appellate court.

3. An indictment alleging that in a certain county and on a certain day I. B. and O. G., 'being and knowing themselves to be persons forbidden to intermarry, by reason that the said I B. was the father of the said O. G., did then and there unlawfully, feloniously, and incestuously have carnal knowledge each of the body of the other, contrary,' etc charges an offense under section 2601, Rev. St.

4. Under a general exception to the court's refusal to give several instructions asserting distinct propositions of law an appellate court will examine no further than to ascertain that one of such instructions was properly refused.

5. An accomplice is a competent witness, and a conviction may be had upon his uncorroborated testimony, if it satisfies the jury of the defendant's guilt beyond a reasonable doubt and these rules apply to prosecutions under section 2601, Rev. St., as well as to other prosecutions for criminal offenses.

6. The crime denounced by section 2601, Rev. St., can be committed by a father with his illegitimate daughter; and the admissions of one charged with the offense prescribed by this section are competent evidence of the relationship alleged to exist between him and the person with whom the offense is alleged to have been committed, and such admissions, if believed to be true by the jury, are sufficient evidence of relationship to sustain a finding as to that fact.

7. Evidence examined, and found sufficient to support the verdict.

COUNSEL

H. K. Olliphant, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

CARTER J.

In the circuit court of Polk county, on October 12, 1899, an indictment was found charging that plaintiff in error and Osceola Gaffney, née Brown, in said county, on September 1, 1898, 'being and knowing themselves to be persons forbidden to intermarry, by reason that the said Isaac Brown was the father of the said Osceola Gaffney, née Brown, did then and there unlawfully, feloniously, and incestuously have carnal knowledge, each of the body of the other, contrary,' etc. On October 13, 1899, upon motion of the state, a severance was granted, and, upon being arraigned, plaintiff in error pleaded not guilty. Upon the trial which followed he was found guilty, and from the sentence imposed upon him sued out this writ of error.

I. The first error assigned is that the court 'erred in not sustaining the defendant's motion to quash the indictment.' The record proper fails to show that any such motion was made; consequently there is nothing before us upon which to base this assignment. The bill of exceptions states that a motion to quash was made and overruled, but the record proper fails to show any such motion or ruling. A motion of this character, and the ruling thereon, are parts of the record proper, and we cannot recognize them when evidenced to us only in the bill of exceptions. Raines v. State (decided at this term) 28 South. ----; Barnes v. Scott, 29 Fla. 285, 11 So. 48; Lovett v. State, 29 Fla. 356, 11 So. 172; Bank v. Grunthal, 38 Fla. 93, 20 So. 809. We are, however, of opinion that, if an indictment wholly fails to state a criminal charge against the defendant, he may take advantage of that fatal defect primarily in the appellate court; and, as plaintiff in error has argued that the indictment is fatally defective, we shall proceed to consider the objection presented, with a view of ascertaining whether the indictment wholly fails to state a case against him.

The only objection to the indictment insisted upon in argument here is that its allegations do not follow the language of the statute, by charging that defendants intermarried or committed adultery or fornication with each other. The statute (section 2601, Rev. St.) reads: 'Persons within the degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void, who intermarry or commit adultery or fornication with each other, shall be punished by imprisonment in the state prison not exceeding twenty years, or in the county jail not exceeding one year.' The next section (2602) provides that 'a man may not marry any woman to whom he is related by lineal consanguinity, nor his sister, nor his aunt, nor his niece. A woman may not marry any man to whom she is related by lineal consanguinity, nor her brother, nor her uncle, nor her nephew.' The pleader in this instance has followed the form of indictment found in section 564, Bish. Dir. & Forms, and, while it does not pursue the exact language of our statute, we think it charges an offense thereunder. It does not of course pretend to charge that the parties committed the crime by intermarrying, but it does charge that they were parent and child, and that they unlawfully, feloniously, and incestuously did have carnal knowledge each of the body of the other. From the allegation that the parties were parent and child, it affirmatively appears that they could not lawfully be husband and wife. Consequently voluntary sexual intercourse between them is necessarily either adultery or fornication, either of which is sufficient to constitute the offense denounced by the statute. The statute, in substance, makes it a crime for persons within the degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void to intermarry, or to have voluntary sexual intercourse with each other, whether such intercourse amounts in law to adultery or fornication, and, as thus interpreted, the indictment charges an offense under the statute. We think the allegation that the defendants 'did unlawfully, feloniously, and incestuously have carnal knowledge, each of the body of the other,' fully equivalent to an allegation that they did have voluntary sexual intercourse with each other. The allegations of this indictment cover every material fact necessary to be proved, the defendant could not have been misled or embarrassed in the preparation of his defense, and he cannot be exposed, after his conviction or acquittal thereon, to substantial danger of a new prosecution for the same offense. Section 2893, Rev. St.; People v. Cease, 80 Mich. 576, 45 N.W. 585; Com. v. Goodhue, 2 Metc. (Mass.) 193. See State v. Herges, 55 Minn. 464, 57 N.W. 205; State v. Dana, 59 Vt. 614, 10 A. 727.

II. The defendant took a general exception to the court's refusal to give three instructions requested by him. These instructions assert separate and distinct propositions of law, and, as the exception was general, we examine no further than to ascertain that one of such instructions was properly refused. Oliver v. State, 38 Fla. 46, 20 So. 803; Bradham v. State, 41 Fla. ----, 26 So. 730. One of them reads as follows: 'If you believe from the evidence that Osceola Gaffney, being an accomplice to the charge against the defendant, and that the only evidence showing the corpus delicti--that is, the sexual intercourse between Brown and Osceola Gaffney was committed--is her evidence only, then you should acquit the defendant Brown, as an accomplice is an incompetent witness to establish the corpus delicti of the offense.' THIS INSTRUCTION WAS CLEARLY ERRONEOUS, aNd therefore properly refused, for the reason that in this state an accomplice is a competent witness, and a conviction may be had upon his uncorroborated testimony, if it satisfies the jury beyond a reasonable doubt. Bacon v. State, 22 Fla. 51; Tuberson v. State, 26 Fla. 472, 7 So. 858. And the rule stated applies to cases of this character as well as others. People v. Jenness, 5 Mich. 305; State v. Dana, 59 Vt. 614, 10 A. 727. The case of State v. Jarvis, 20 Or. 437, 26 P. 302, 23 Am. St. Rep. 141, cited by counsel as holding a different rule, is based upon a statute (State v. Jarvis, 18 Or. 360, 23 P. 251), but we have no such statute in this state.

III. The plaintiff in error took an exception to the following instruction given by the court: 'If the defendant Isaac Brown has been proven to have admitted...