State v. Andrews
| Decision Date | 05 November 1914 |
| Docket Number | No. 29797.,29797. |
| Citation | 167 Iowa 273,149 N.W. 245 |
| Parties | STATE v. ANDREWS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Clinton County; William Theophilus, Judge.
Indictment for incest. Judgment for defendant. The State appeals. Affirmed.Geo. Cosson, Atty. Gen., and Wm. T. Oakes, Co. Atty., of Clinton, for the State.
T. W. Hall and C. H. George, both of Clinton, for appellee.
[1] It was conceded on the trial that defendant was accused of having intercourse with the daughter of his wife's brother, or his niece by affinity. The trial court ruled that under such circumstances the act of intercourse did not constitute incest within the meaning of our statute. The statute as it now stands is as follows:
“If any man marry his father's sister, mother's sister, father's widow, wife's mother, daughter, wife's daughter, son's widow, sister, son's daughter, daughter's daughter, son's son's widow, daughter's son's widow, brother's daughter or sister's daughter; or if any woman marry her father's brother, mother's brother, mother's husband, husband's father, son, husband's son, daughter's husband, brother, son's son, daughter's son, son's daughter's husband, daughter's daughter's husband, brother's son or sister's son; or if any one marry his or her first cousin; or if any person, being within the degrees of consanguinity or affinity in which marriages are prohibited by this section, carnally know each other, they shall be guilty of incest, and imprisoned in the penitentiary not exceeding twenty five years nor less than one year.” Code, § 3936.
The contention of the state is that this section makes intercourse between persons “within the degrees of consanguinity or affinity in which marriages are prohibited by this section” incestuous, and it is the claim that the relation of uncle and niece by affinity is within the degrees of affinity in which marriages are prohibited by statute. It is said, further, that this law prohibits the marriage of first cousins, and the state contends that marriages under all degrees of relationship that are by ties of affinity or consanguinity closer than first cousins come under the ban of the statute; that the relationship of uncle and niece is closer than first cousins, hence that is a relationship within the prohibitive degree. The argument is that by the use of the word “within” the Legislature intended to not only make carnal knowledge between people in the specified degrees incestuous, but also make carnal knowledge between people related as closely or more closely than the degrees specifically named incestuous, and they say that the only question involved here is really an interpretation or definition of the word “within” as here used.
The trouble with this contention is that the statute does not make carnal knowledge between people related as closely or more closely than the degrees specifically named incestuous. Definitions of the word “within” as given in the dictionaries are referred to in the argument, and then counsel say:
“It would seem to us that, with the statute worded as it is, the Legislature intended to cover other degrees of relationship than those especially enumerated that would be as close or closer than the enumerated ones.”
By this counsel for the state seem to concede that the statute quoted, and upon which the indictment is based, does not specifically enumerate such an act as incest. Some of the relations enumerated in the statute are those of consanguinity, others affinity, and the latter part of the section simply provides that:
“If any person, being within the degrees of consanguinity or affinity in which marriages are prohibited by this section, carnally know each other, they shall be guilty of incest,” etc.
We think the word “within,” or the words “being within,” in this statute, are not intended to include other relations not mentioned in the first part of the section. The latter part of the section clearly refers to the first part.
No cases are cited by counsel for the state to sustain their position. While the statutes of Indiana are somewhat different from our own on this subject, we think there is no material difference as to the point now under consideration. The statutes of that state provide, in substance, that:
“If any uncle or aunt shall have sexual intercourse with his or her niece or nephew,” etc., “shall be guilty of incest.”
Under such a statute, the court in that state, in the case of State v. Tucker, 174 Ind. 715, 93 N. E. 3, Ann. Cas. 1913A, 100, said that:
“All the cases decided by state courts involving the crime of incest between uncle and niece, which we have been able to find, disclose a relationship by blood.”
This case is also reported in 31 L. R. A. (N. S.) 772, where, in the note, the statement is made that no case, aside from the Tucker Case, has been found involving the question whether sexual intercourse between a man and his niece by marriage constitutes incest.
Sexual connection between a man and his wife's sister is not incest, when not regulated by statute. Dukes v. Clark, 2 Blackf. (Ind.) 20. Our statute does not make such an act incest, and we think it would not do to go a step farther and say that it would be incest for a man to have connection with a daughter of his wife's sister. The same relation exists between a man and a daughter of his wife's sister as between him and a...
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