Cox v. People of State

• Decision Date: 30 June 1876
• Citation: Cox v. People of State , 82 Ill. 191, 1876 WL 10168 (Ill. 1876)
• Parties: CHARLES COXv.THE PEOPLE OF THE STATE OF ILLINOIS
• Court: Illinois Supreme Court

82 Ill. 191

1876 WL 10168 (Ill.)

CHARLES COX

v.THE PEOPLE OF THE STATE OF ILLINOIS

Supreme Court of Illinois.

June Term, 1876.

WRIT OF ERROR to the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. MARSHALL W. WEIR, for the plaintiff in error.

Mr. CHARLES P. KNISPEL, and Mr. R. A. HALBERT, for the People.

Per CURIAM:

The indictment contains two counts.In the first, the defendant is charged with incest; and, in the second, he is charged with an assault with intent to commit incest.The verdict of the jury is: “We, the jury, find the defendant guilty of an attempt to commit incest with Caroline Rider, under the first count of the indictment, and assess his punishment at imprisonment in the penitentiary for the term of two years.”

The crime of incest is punishable, if it be by a father cohabiting with his daughter, by confinement in the penitentiary, for any term not exceeding twenty years; and if it be by cohabiting between other persons, within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, by confinement in the penitentiary for a term not exceeding ten years.R. L. 1874, p. 376, §§ 156,157.

And, by another section of the Criminal Code, “whoever attempts to commit any offense prohibited by law, and does any act towards it, but fails, or is intercepted or prevented in its execution, where no express provision is made by law for the punishment of such attempt, shall be punished, where the offense thus attempted is a felony, by imprisonment in the penitentiary not less than one nor more than five years; in all other cases, by fine not exceeding $300, or by confinement in the county jail not exceeding six months.”R. L. 1874, p. 393, § 273.

It is not claimed, nor is there any express provision made by the Criminal Code for the punishment of an attempt to commit incest, so that the defendant's case is brought within this section, if he is liable at all.The evidence shows, simply, an unsuccessful solicitation to commit the offense, and the question, therefore, is, does a bare solicitation constitute an attempt, within the meaning of the section?

Wharton, in discussing whether solicitations to commit crimes are independently indictable, in the 2d volume of his work on Criminal Law (7th Ed.), in § 2691, says: “They certainly are, * * * where their object is to provoke a breach of the public peace, as is the case with challenges to fight and seditious...