Mccaskill v. State
| Decision Date | 12 February 1908 |
| Citation | 45 So. 843,55 Fla. 117 |
| Court | Florida Supreme Court |
| Parties | McCASKILL v. STATE. |
Error to Circuit Court, Walton County; J. Emmet Wolfe, Judge.
Lewis McCaskill was convicted of incest, and he brings error. Affirmed.
Syllabus by the Court
Incest is sexual intercourse between persons so nearly related to each other that marriage between them would be unlawful. At common law, incest was not an indictable offense, but was punishable in the ecclesiastical courts of England.
An indictment is not fatally defective which charges that the accused did commit the crime of incest by committing the crime of adultery and fornication in having sexual intercourse with his daughter. The allegation that the accused committed the crime of adultery and fornication is a mere conclusion and surplusage, not affecting the sufficiency of the allegations of the single offense of incest.
The statute defining the crime of incest does not make the knowledge by the accused of the relationship between him and the woman an element of the offense of incest. Therefore it is not necessary for the indictment to allege such knowledge by the defendant.
Where an indictment alleges that the offense charged was against the form of the statute, it is not essential to allege that the acts charged were unlawful, or unlawfully done, where that is not an element of the offense as defined by the statute. If the act charged be illegal, it would be superfluous to allege it to be unlawful. If the act charged is not unlawful, or was not unlawfully done, an allegation that it is unlawful, or was unlawfully done, does not render it indictable.
At common law indictments for felonies should allege the acts constituting the crime to have been feloniously done; but in consequence of the constitutional and statutory provisions of this state the failure to allege that the criminal acts charged were feloniously done does not affect the validity or sufficiency of the indictment, when not required by the statute defining the offense.
In the crime of incest there may be a certain force or power exerted, resulting from age, relationship, or circumstances of the parties, which overcomes the objections of the female without amounting to that violence which would constitute rape.
The fact that a defendant, in having carnal intercourse with his 12 year old daughter, used some force or threasts to overcome the resistance actually made by her, does not render the act the less incestuous. In a prosecution for incest, rather than for rape, evidence that some force was used by the defendant in accomplishing his purpose is admissible.
Neither the statute nor the true meaning of the terms used in defining the offense of incest imply that a mutuality of consent is necessary to constitute the crime of incest.
Daniel Campbell & Son, for plaintiff in error.
W. H Ellis, Atty. Gen., for the State.
An indictment was presented in the circuit court for Walton county in which it is charged that Lewis McCaskill did 'commit the crime of adultery and fornication with one Nellie McCaskill, a female person, by then and there having sexual intercourse with the said Nellie McCaskill; * * * that the said Nellie McCaskill was then and there the own daughter of the said Lewis McCaskill, and that the said Lewis McCaskill was then and there the own father of the said Nellie McCaskill; * * * that the said Lewis McCaskill did then and there in the manner aforesaid commit the crime of incest--against the form of the statute,' etc. The defendant moved to quash the indictment upon the grounds that (1) it charges no offense against the laws of the state; (2) it does not allege that defendant did knowingly commit adultery and fornication with his daughter; (3) it seeks to charge the defendant with two offenses in the same count of the indictment. The motion was denied. Upon arraignment the defendant pleaded not guilty. A verdict of guilty as charged was returned, and, a motion for new trial having been denied, the defendant was sentenced to give years in the penitentiary, and took writ of error.
The first error assigned is overruling the motion to quash the indictment. It is contended that no offense under the laws of the state is charged, because (1) it is not alleged that the defendant knowingly committed adultery or fornication with his daughter; (2) the act is not alleged to have been feloniously or unlawfully done; (3) two offenses are alleged in the same indictment.
Incest is sexual intercourse between persons so nearly related to each other that marriage between them would be unlawful. 22 Cyc. 44; Standard Dictionary, 'Incest;' 16 Am. & Eng. Ency. Law (2d Ed.) 134; Taylor v. State, 110 Ga. 150, text 152, 35 S.E. 161; State v. Gilndemann, 34 Wash. 221, text 223, 75 P. 800, 101 Am. St. Rep. 1001; 4 Words & Phrases, 3491.
At common law incest was not an indictable offense, but was punishable in the ecclesiastical courts of England. 4 Blackstone's Com. 64; 22 Cyc. 44; Bishop's Stat. Crimes (3d Ed.) § 728; 10 Ency. Pl. & Pr. 334; State v. Keesler, 78 N.C. 469; Tuberville v. State, 4 Tex. 128, text 136.
The statutes of this state provide that: '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.' Sections 2601, 2602, Rev. St. 1892; sections 3524, 3525, Gen. St. 1906.
The charge that the defendant did commit the crime of adultery and fornication is controlled by the latter part of the same sentence, which states that the alleged crime of adultery and fornication was committed by then and there having sexual intercourse with the mentioned female alleged to be the daughter of the defendant. Whether the specific act charged is adultery or fornication, or both, is a conclusion of law that need not be alleged. Therefore the allegation that the crime of audultery and fornication had been committed may be regarded as surplusage, not affecting the sufficiency of the facts alleged to charge the single offense of incest denounced by the statute.
The statute does not make the knowledge by the defendant of the relationship between him and the woman an element of the offense. Therefore it is not necessary for the indictment to allege such knowledge by the defendant. State v. Pennignton, 41 W.Va. 599, 23 S.E. 918; State v. Dana, 59 Vt. 614, 10 A. 727; State v. Bullinger, 54 Mo. 142; Simon v. State, 31 Tex. Cr. R. 186, text 203, 20 S.W. 399, 716, 37 Am. St. Rep. 802; State v. Wyman, 59 Vt. 527, 8 A. 900, 59 Am. Rep. 753.
The indictment alleges that the offense charged was against the form of the statute, and it is not essential to allege that the acts charged were unlawful, or unlawfully done, since that is not an element of the offense as defined by the statute. If the act charged be illegal, it would be superfluous to allege it to be unlawful. If the act charged is not unlawful, or was not unlawfully done, an allegation that it is unlawful, or was unlawfully done, does not render it indictable. Wharton's Cr. Pl. & Pr. § 269; State v. Tibbetts, 86 Me. 189, 29 A. 979; State v. Murphy, 43 Ark. 178; United States v. Thompson, 6 McLean, 56, Fed. Cas. No. 16,490; Nash v. State, 2 G. Greene (Iowa) 286; 22 Cyc. 332; 10 Ency. Pl. & Pr. 495.
At common law indictments for felonies should allege the acts constituting the crime to have been feloniously committed. Wharton's Cr. Pl. & Pr. § 260.
Section 25 of article 16 of the Constitution of this state provides that: 'The term 'felony,' whenever it may occur in this Constitution or in the laws of the state, shall be construed to mean any criminal offense punishable with death or imprisonment in the state penitentiary.' Section 2352, Rev. St. 1892 (section 3176, Gen. St. 1906), provides that: Section 2894, Rev. St. 1892 (section 3963 Gen. St. 1906), provides that: 'It shall not be necessary to allege in an indictment that the offense charged is a felony, or felonious, or done feloniously, nor shall any indictment or complaint be quashed or deemed invalid by reason of the omission of the words 'felony,' 'felonious' or 'feloniously." In consequence of these constitutional and statutory provisions the failure to allege that the acts charged against the defendant were feloniously committed, when that is not a part of the statutory definition of the offense, does not affect the validity or sufficiency of the indictment. The punishment fixed by the statute determines whether the offense charged is or is not a felony. Baldwin v. State, 46 Fla. 115, 35 So. 220.
The indictment in this case alleges the essential elements of the offense as defined by the statute with sufficient amplification to...
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