State v. Bartley

• Decision Date: 05 June 1924
• Docket Number: No. 25351.,25351.
• Citation: 304 Mo. 58,263 S.W. 95
• Parties: STATE v. BARTLEY
• Court: Missouri Supreme Court

263 S.W. 95

304 Mo. 58

STATE v. BARTLEY

No. 25351.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Joseph B. Bartley was convicted of falsely and maliciously accusing a female of incest. On writ of error, the Kansas City Court of Appeals affirmed the conviction, and the case was certified and transferred to the Supreme Court. Reversed.

N. T. Cave, of Fulton, and Emil P. Rosenberger, of Montgomery City, for appellant.

Jesse W. Barrett, Atty. Gen., J. Henry Caruthers, Asst. Atty. Gen., and W.B. Whitlow, Pros. Atty., of Fulton, for the State.

HIGBEE, C.

Joseph Bartley was convicted, in the circuit court of Callaway county, of falsely and maliciously accusing a female of incest. On a writ of error, the Kansas City Court of Appeals affirmed the conviction. Judge Bland, deeming the opinion of the court to be in conflict with certain previous decisions of the Supreme Court, the case was certified and transferred to this court.

The amended information, based on section 3612, R. S. 1919, charges that Bartley falsely and maliciously imputed to Grace A. T _____ the crime of incest, by falsely and maliciously speaking, to Ed. Love, certain words by which he meant, and was understood to mean, that he, Bartley, had had sexual intercourse with said Grace A. T _____, the said Grace A. T _____ being the niece of the said Joseph Bartley. A trial was had, resulting in a verdict of guilty, and assessing the defendant's punishment at a fine of $400.

Bartley is a half-brother of the mother of Grace A. T _____. They are, therefore, uncle and niece of the half blood. Section 3511, R. S. 1919, defining incest, reads:

"Persons within the following degrees of consanguinity, to wit: Parents and children, including grandparents and grandchildren of every degree, brothers and sisters of the half, as well as of the whole, blood, uncles and nieces, aunts and nephews, who shall intermarry With each other, or who shall commit adultery or fornication with each other or who shall lewdly and lasciviously cohabit with each other shall be adjudged guilty of incest, and be punished by imprisonment in the penitentiary, not exceeding seven years."

Section 7299, a. 9. 1919, prohibiting marriage between certain relatives, reads:

"All marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as of the whole blood, and between uncles and nieces, aunts and nephews, first cousins, white persons and negroeo, white persons and Mongolians, are prohibited and declared absolutely void, and this prohibition shall apply to illegitimate as well as legitimate children and reatives."

Falsely and maliciously to accuse any female of incest is a misdemeanor. Section 3612, H. S. 1919.

The majority opinion of the Court of Appeals holds that the words "uncles and nieces," as used in the statute (section 3511, supra), includes uncles and nieces of the half, as well as of the whole, blood. The opinion cites State v. Reedy, 44 Kan. 190, 192, 24 Pac. 66, 67, where the court said:

"An uncle is defined to be the brother of a father or mother, and according to the common understanding there is no distinction between the whole and half blood."

In support of this proposition, the opinion quotes 1 Bishop on Marriage and. Divorce, § 317 (section 748, Ed. 1891):

"The relationship by half blood is the same, in these cases, as by whole blood; so that, for example, it is incest for a man to marry the daughter of his brother of the half blood, or the daughter of his half-sister."

The learned author, as will be seer by the context, was treating of the English ecclesiastical law, 32 Hen. VIII, c. 38, which declared lawful the marriage of all persons "not prohibited by God's law to marry." Id. § 737. It prohibits marriages between persons related by blood or marriage, within the Levitical degrees. Lev. c. 18.

"Under the statute it is incestuous for a man to marry his deceased wife's sister, or for a woman to marry her deceased husband's brother." Section 747.

In another work he says:

"At the time of the settlement of our country, incest, the same as common adultery and fornication, was punishable as an offense against the ecclesiastical law, but it was not indictable in the common-law courts. Tit is not, therefore, indictable under our common law." Bishop on Statutory Crimes (3d Ed.) § 728.

We must, therefore, look to the statute for the definition of incest. Are uncles and aunts of the half blood, as well as of the "whole blood, within the prohibited fiegrees of relationship? Criminal statutes are to be construed strictly; liberally in favor of the defendant, and strictly against the state, both as to...