Mosley v. State

• Decision Date: 19 September 1941
• Docket Number: 29050.
• Citation: 16 S.E.2d 504,65 Ga.App. 800
• Parties: MOSLEY v. STATE.
• Court: Georgia Court of Appeals

16 S.E.2d 504

65 Ga.App. 800

MOSLEY v. STATE.

No. 29050.

Court of Appeals of Georgia, Division No. 1.

September 19, 1941

P M. Anderson, of Claxton, for plaintiff in error.

R L. Dawson, Sol. Gen., of Ludowici, for defendant in error.

MacINTYRE Judge.

Leonard Mosley was convicted of incestuous adultery with his unmarried daughter who at the time of the acts of intercourse was under the age of consent. The defendant's motion for new trial was overruled and he excepted.

The defendant contends that his daughter, who is under the age of consent, was an accomplice, and that her testimony must be corroborated as provided in Code, § 38-121. "'An accomplice is strictly defined as one who is associated with others in the commission of a crime, all being principals.' 1 Am. & Eng.Enc.Law (2d Ed.) 389. Participation in the commission of the same criminal act, and in the execution of a common criminal intent, is therefore necessary, to render one criminal, in a legal sense, an accomplice of another. 'Criminal intent is a necessary ingredient of crime, and is essential to render one an accomplice. It follows that where this element is absent, one is not an accomplice."' Springer v. State, 102 Ga. 447, 451, 30 S.E. 971. "Whether a witness is an 'accomplice' within the meaning of the exception in the Penal Code, § 1017 [now § 38-121], relating to the number of witnesses necessary to establish a fact, the test in general is, 'Could the witness himself have been

indicted for the offense, either as principal or as accessory?"' Kearce v. State, 178 Ga 220(2), 172 S.E. 643, 644. "A woman who consents to an act of sexual intercourse which is incestuous is an accomplice of the man. This rule is not varied where some coercion is used by the man, but not of a character to make the case one of rape." Whidby v. State, 121 Ga 588(1), 49 S.E. 811.

Our Code, § 26-5701, with reference to incestuous fornication and adultery provides: "Any person who shall commit incestuous fornication or adultery shall be punished by imprisonment and labor in the penitentiary for not less than one nor more than 20 years." (Italics ours.) With reference to adultery and fornication, the Code, § 26-5801, provides: "Any man and woman who shall live together in a state of adultery or fornication, or of adultery and fornication, or who shall otherwise commit adultery or fornication, or adultery and fornication, shall be severally indicted, and shall be severally punished as for a misdemeanor; but it shall, at any time, be within the power of the parties to prevent or suspend the prosecution and the punishment by marriage, if such marriage can be legally solemnized." (Italics ours.) The Supreme Court, in reference to these sections, has said: "Nothing can be plainer than that the crime of incestuous fornication is, by our statute, not a joint offense. The words are, 'any person who shall commit incestuous fornication [or adultery].' By what rule of construction this can be made to mean, 'if any two persons shall,' etc., we are unable to see. The very next section of the Code, section 4460, punishing fornication and adultery, does make a joint offense, and uses very different language. 'Any man and woman who shall,' etc. It is hardly supposable that language so different should be used in almost the same sentence without a special intent. And there is great propriety in the distinction. The unnatural crime, prohibited in section 4459 [now § 26-5701], as experience shows, is generally the act of a man upon a woman, over whom, by the natural ties of kindred, he has almost complete control, and generally he alone is to blame. There is a force used, which, while it cannot be said to be that violence which constitutes rape, is yet of a character that is almost as overpowering. Indeed, if it were necessary to make out a case of mutual consent (and without this there is no joint offense), we think but few cases of this unusual crime would be punished." Powers v. State, 44 Ga. 209, 214, 215. See, also, Raiford v. State, 68 Ga. 672, 674. Thus if the female was capable of consent, "A man accused of incestuous adultery cannot be convicted upon the uncorroborated testimony of the woman with whom he is alleged to have committed the offense." Yother v. State, 120 Ga. 204, 47 S.E. 555. The age of consent in this state is 14 years. Code, § 26-1303. In the instant case the indictment alleged, and the evidence for the State was confined to an act of sexual intercourse committed before the date the defendant's daughter reached the age of consent, to wit, 14 years. The daughter was below the age of consent and could not have been indicted as a participant in the crime charged, either as a principal or as an accessory, and she was not, under the definition above given, an accomplice within the meaning of Code, § 38-121. On the contrary, one indicted for incestuous adultery can not escape conviction on the ground that the female upon whom the crime was alleged to have been committed was of such an age that she was not at the time capable of giving her consent. State v. Chambers, 87 Iowa 1, 53 N.W. 1090, 43 Am.St.Rep. 349; LaFray v. State, 48 Ga.App. 133, 172 S.E. 115; Beal v. State, 72 Ga. 200; Brown v. State, 21 Ala.App. 371, 108 So. 625; State v. Sparks, 167 Iowa 746, 149 N.W. 871; State v. Stalker, 169 Iowa 396, 151 N.W. 527(3, 4), L.R.A.1915E, 1222; Westbrooks v. State, 179 Ark. 714...