Shelley v. State (State Report Title: Shelly v. State)

• Decision Date: 13 June 1895
• Citation: 31 S.W. 492,95 Tenn. 152
• Parties: SHELLEY v. STATE. [*]
• Court: Tennessee Supreme Court

31 S.W. 492

95 Tenn. 152

SHELLEY v. STATE. ^[*]

Supreme Court of Tennessee.

June 13, 1895

Appeal from circuit court, Hardin county; E. D. Patterson, Judge.

John Shelley was convicted of incestuous intercourse, and brings error. Reversed.

Will J Watson and Frank P. Smith, for plaintiff in error.

The Attorney General, for the State.

McALISTER J.

The plaintiff in error was indicted, tried, and convicted in the circuit court of Hardin county on a charge of incestuous intercourse with the daughter of his half-sister, and, upon the verdict of a jury, was sentenced by the court to imprisonment in the state penitentiary for a term of five years. He has appealed in error to this court. The indictment was based upon section 5646, Mill. & V Code, viz.: "No man shall marry or have carnal knowledge of his mother, his father's sister, his mother's sister, his sister, his daughter, the daughter of his brother or sister," etc. Section 5647 further provides, viz "No woman shall marry or have sexual intercourse with her father, her father's brother, her mother's brother," etc. The punishment prescribed for this offense is confinement in the penitentiary for a period of not less than 5 nor more than 21 years.

The first assignment of error is based upon the charge of the circuit judge on the construction of this statute, to wit: "The term sister, as used in this connection, would apply as well to the half blood as to the whole blood; so that if you find from the proof that the mother of this girl, with whom defendant is charged to have had carnal knowledge, was only a half-sister of defendant, still the offense would be the same as if she had been the daughter of a full sister." We think the charge a sound construction of the statute, and in entire accord with the authorities. This precise question was before the supreme court of Vermont in the case of State v. Wyman, 59 Vt. 527. The court said, viz.: "It was objected that the indictment was not sustained by proof that the respondent committed the offense with a daughter of his half-brother, it being claimed that the word brother in the statute was not broad enough to cover a brother of the half blood. In support of this claim it is urged that, at common law, a brother of the half blood is not a brother, and cannot inherit as such. It is true that by the common law a brother of the half blood could not inherit, but this was a rule for the regulation of the descent of property, and had no broader scope. It did not undertake to affect the relations of brethren of the half blood any further than to prescribe, for certain reasons having their origin in the ancient system of feudal tenures, that on the descent of the inheritance a brother of the half blood should be left out. The common-law rule, therefore, would have no force in a case of this kind, but the generally understood significance, and the word 'brother' as used in the common affairs of life, and as defined by lexicographers of recognized authority, should be adopted in the construction of the statute." See, also, Territory v. Corbett, 3 Mont. 50.

We find upon an examination of the record that this conviction is based...