Commonwealth v. Ashey

• Decision Date: 01 March 1924
• Parties: COMMONWEALTH v. ASHEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 259

142 N.E. 788

COMMONWEALTH

v.ASHEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1924.

Report from Superior Criminal Court, Suffolk County; Patrick M. Keating, Judge.

Esa G. Ashey and another were found guilty of having sexual intercourse, not being lawfully married. On report. Verdict ordered to stand.

M. Caro, Asst. Dist. Atty., of Boston, for the Commonwealth.

A. F. Flint, of Boston, for defendants.

DE COURCY, J.

The defendants were indicted under G. L. c. 272, § 17, which provides:

‘Persons within the degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void, who intermarry or have sexual intercourse with each other, shall be punished. * * *’

It was admitted that they went through a ceremony of marriage on December 18, 1922, that they lived together as husband and wife and that they had sexual intercourse. The jury returned a verdict of guilty against both, and answered specially that the relationship of the male defendant to the mother of the female defendant was that of brother and sister of the half blood. In other words Teresa Beneditti is Ashey's niece of the half blood. The question of law raised by the report depends primarily on the proper construction of G. L. c. 207, §§ 1, and 2, providing that ‘no man shall marry his * * * sister's daughter’ and ‘no woman shall marry her * * * mother's brother.’

This statute prohibiting certain marriages has come down from chapter 2 of the Province Laws of 1695-96. Section 1 of said chapter 2 contains an elaborate enumeration of the prohibited degrees. It was apparently modeled on the table of degrees established by Archbishop Parker in 1563, which in turn was based upon the Levitical decrees, the source of the law of incest. See Gibson's Codex Juris Ecclesiastici Anglicani, vol. 1, p. 414. This table prohibits marriage between a man and his sister's daughter, among others. The fundamental case expounding the ecclesiastical law as it was deemed to be at the time (1722) is that of Butler v. Gastrill, Gilbert's Reports, p. 156. See also as to the early law, L. R. A. 1916C, 690; 2 Kent's Com. (13th Ed.) 82-85. Bacon's Abridgement (1852) vol. 6, pp. 455-460.

It was said in Butler v. Gastrill, supra, at page 158:

‘And when we consider who are prohibited to marry by the Levitical 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.’

And the English courts have held that the prohibition applies where the relation is that of the half blood. Queen v. Inhabitants of Brighton, 1 B. & S. 447; Mette v. Mette, 28 L. J. (N. S.) 1859, part III, p. 117. On the basis of these cases it is said in 16 Halsbury's Laws of England, 284:

‘In reference to the prohibited decrees, relationship by the half blood is a bar to marriage equally with relationship by the whole blood. * * *’

And Bishop, in his Marriage, Divorce & Separation, vol. 1, § 748, states:

‘The relationship by half blood is the same in these cases as by whole blood; so that, for example, it is incestuous for a man to marry the daughter of his brother of the half blood, or the daughter of his half-sister.’

When our original law was enacted in 1695-96, it seems reasonable to assume that the interpretation of the ecclesiastical law as it then existed in England was adopted, treating the half blood relation like the whole blood. See Schouler Marriage, Divorce, Separation & Domestic Relations (6th Ed.) vol. 1, § 16; Bishop, supra, vol. 1, § 756. And no substantial change in the fundamental doctrine involved appears in our subsequent statutory law.

No Massachusetts case has been called to our attention which decides whether the half blood is to be treated on a par with the whole blood in a prosecution for incest under our statutes. The decisions in other states, however, support the contention of the commonwealth. In State v. Wyman, 59 Vt. 527, 8 Atl. 900,59 Am. Rep. 753, it was held that the word ‘brother,’ in the statute against incest, includes a brother of the half blood; and a conviction of the defendant, who committed the offense with a daughter of his half-brother, was sustained. In Shelly v. State, 95 Tenn. 152, 31 S. W. 492,49 Am. St. Rep. 926, the defendant was convicted on a charge of incestuous intercourse with the daughter of his half-sister; the statute forbidding such intercourse with ‘the daughter of his brother or sister,’ etc. State v. Reedy, 44 Kan. 190, 24 Pac. 66, involved a charge of incestuous cohabitation with the daughter of the defendant's half-brother. The conviction was upheld; the court stating:

‘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. They are more closely allied in blood than some of those who are specifically mentioned in the statute as being within the forbidden degrees, and this to some extent indicates the meaning and purpose of the Legislature.'

The defendant in The People v. Jenness, 5 Mich. 305, was convicted of incest with the daughter of his sister. It was said by Christiancy, J. (page 318):

‘The charge...