Lipham v. State

• Decision Date: 23 March 1906
• Citation: 53 S.E. 817,125 Ga. 52
• Parties: LIPHAM. v. STATE.
• Court: Georgia Supreme Court

53 S.E. 817

125 Ga. 52

LIPHAM.

v.STATE.

Supreme Court of Georgia.

March 23, 1906.

1. Indictment—Designation of Offense.

It is not the name, but the description, of the crime, which characterizes the offense charged.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 180.]

2. Incest—Stepchild.

A man who marries the mother of an illegitimate daughter becomes the stepfather of such child, within the meaning of section 380 of the Penal Code of 1895, and of section 2413 of the Civil Code of 1895.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Incest, § 4.]

3. Same—Evidence.

In the trial of one charged with incest, evidence tending to establish acts of incest at times other than and prior to that relied on for a conviction is admissible as throwing light upon the relations of the parties toward each other.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Incest, § 11.]

(Syllabus by the Court.)

Error from Superior Court, Colquitt County; R. G. Mitchell, Judge.

John Lipham was convicted of crime, and brings error. Affirmed.

J. A. Wilkes, for plaintiff in error.

W. E. Thomas, Sol. Gen., for the State.

COBB, P. J. The material portion of the Indictment was in the following words: "The grand jurors charge and accuse and present John Lipham, of the county and state aforesaid, with the offense of a felony, for that the said John Lipham, in the county aforesaid, on the first day of July, in the year of our Lord nineteen hundred and four, with force and arms and unlawfully, being then and there a married man, did have sexual Intercourse with and carnally know one Delia Tipper, who was then and there an unmarried woman, and was then and there the stepdaughter of him the said John Lipham." There was a demurrer to this indictment, which alleged that It charged no offense under the laws of this state; that it charged the accused with a felony, and it does not appear of what the felony consisted; that It does not charge the accused with the com mission of incestuous fornication or Incestuous adultery, nor does it allege that either of these acts was committed; and it does not charge the offense of incest in any manner whatever. This demurrer was overruled, and this ruling is made the basis of one of the assignments of error. The Penal Code provides that any person guilty of incestuous adultery or incestuous fornication shall be punished by confinement in the penitentiary. Pen. Code 1895, § 380. The Code does not attempt to define the offense of incestuous fornication or incestuous adultery. Adultery or fornication, committed by persons who are prohibited by law from marrying on account of being related within certain degrees of consanguinity or affinity, is incestuous. See Cook v. State, 11 Ga. 56, 56 Am. Dec. 410. The Code prohibits the marriage of a man with his stepdaughter, and declares such a marriage to be incestuous. Civ. Code 1895, § 2413. The presentment, therefore, in its descriptive parts, sets out an offense against the laws of this state.

But it is said that the name of the offense Is not set out in the presentment; that it should be alleged that the accused was guilty of incestuous adultery, whereas it was sim-ply alleged that he was guilty of a felony. It is Immaterial what the offense is called, If the averments of the presentment are such as to describe an offense against the laws of the state. It is not the name given to the offense in the bill which characterizes it, but the description in the averments of the indictment. Camp v. State, 3 Ga. 419, Van Epp's Annotations, Id. 421.

2. Upon the trial the evidence of the state established the fact that the alleged stepdaughter was the illegitimate child of the wife of the accused, born before the marriage of the mother with the accused. The question to be determined is whether such a child becomes a stepdaughter, within the meaning of Civ. Code 1895, § 2413, which declares that a marriage between a man and his stepdaughter is incestuous. Dictionaries and text-books with unanimity define a stepdaughter to be the child of a wife or husband by a former marriage. If this definition is controlling, the illegitimate child of the husband or wife before their marriage would not become the stepchild of the other party to the marriage contract. Section 2413 of the Civil Code of 1895 is founded upon the Roman law. See Hunter's Roman Law (3d Ed.) 686. "Only the children begotten in legitimate marriage had jurlstically a father and paternal relations. On the other hand, as regards the mother and the maternal relations, the law made no difference between their children begotten in wedlock and out of wedlock." Salkowski's Roman Private Law, p. 217. This distinction is followed, at least to some extent, in. this state. A bastard in the eye of our law has no father, but the relationship...