State v. Freddy

Decision Date07 May 1906
Docket Number16,064
Citation41 So. 436,117 La. 121
CourtLouisiana Supreme Court
PartiesSTATE v. FREDDY

Rehearing Denied June 18, 1906.

Appeal from Seventh Judicial District Court, Parish of Richland William Jefferson Gray, Judge.

J. H Freddy was convicted of crime, and appeals. Reversed.

Ellis &amp McGregor, for appellant.

Walter Guion, Atty. Gen., and John R. McIntosh, Dist. Atty. (Lewis Guion, of counsel), for the State.

PROVOSTY J. LAND, J., dissents from the ruling on point of defendant's legal right to summon the witness during the trial, but otherwise concurs in the opinion.

OPINION

PROVOSTY, J.

Defendant was convicted of incest, and sentenced to 20 years at hard labor. The accusation is that he had sexual intercourse with his daughter without her consent.

His first reliance is upon the refusal of the court to charge that consent of both parties is essential to incest.

The question thus raised is presented to this court for the first time. It was not considered in the case of State v. De Hart, 109 La. 570, 33 So. 605.

For the definition of our crimes, we are referred by the act of 1805 to the common law of England, as it existed at that date; but incest was not a crime cognizable at common law in 1805 ( State v. Smith, 30 La.Ann. 846); and hence our statute making it a crime must be interpreted unaided by the light of the common law. It is Act No. 78 of 1884, p. 101, and read as follows:

"An act to define the crime of incest and provide for the punishment thereof.

"Whoever shall hereafter knowingly intermarry, or cohabit without marriage, being within the degrees of consanguinity within which marriage is prohibited by articles 94 and 95 of the Revised Civil Code of the state of Louisiana, shall be deemed guilty of the crime of incest."

The question to be considered is whether the word "cohabit," as used in this statute, implies, or not, the concurrent will of the parties.

Summarized, the argument of the learned counsel for defendant is that whether we read this statute in the light of the definition of the word "cohabit," or in the light of the motives underlying its enactment, or in the light of numerous decisions of the courts of sister states, interpreting similar statutes, we are bound to understand it as requiring the consent of both parties. That the definition of cohabit, both by the dictionaries and the courts, is "to dwell together as husband and wife," which describes a relation implying the consent of both parties. That the motive of the statute is twofold: To guard against degenerate offspring, and to avoid the scandalous spectacle of persons so nearly related holding themselves out to the world as husband and wife; and that neither of these things is possible unless both parties are consenting. That the following decisions hold that the consent of both parties is an essential element of incest, to wit: People v. Jenness, 5 Mich. 305, 321; De Groat v. People, 39 Mich. 124; People v. Burwell, 106 Mich. 27, 63 N.W. 986; People v. Skutt, 96 Mich. 449, 56 N.W. 11; State v. Ellis, 74 Mo. 385, 41 Am. Rep. 321; State v. Eding, 141 Mo. 283, 42 S.W. 935; State v. Jarvis, 20 Or. 437, 26 P. 302, 23 Am. St. Rep. 141; Noble v. State, 22 Ohio 545; State v. Thomas, 53 Iowa 214, 4 N.W. 908; Baumer v. State, 49 Ind. 544, 19 Am. Rep. 691; State v. Markins, 95 Ind. 464, 48 Am. Rep. 733; and State v. Fritts, 48 Ark. 66, 2 S.W. 256.

As illustrative of the meaning of the word "cohabit," the learned counsel cite the decision of the Supreme Court of the United States in the case of Cannon v. United States, 116 U.S. 55, 6 S.Ct. 278, 29 L.Ed. 561, where, interpreting the statute against polygamy, the court said that:

"The offense of cohabiting with more than one woman is committed by a man who so associates with two women as to hold them out to the world as his wives, and it is not essential to the commission of the crime that he should have had sexual intercourse with either of them."

From this, the learned counsel deduce the conclusion that sexual intercourse is not essential to incest; but that the crime is committed by the parties if, without any act of sexual intercourse, they merely hold themselves out to the world as living together as husband and wife.

We are not impressed by this argument. The etymological meaning of the word "cohabit" is simply "to dwell together." The acquired meaning varies, necessarily, with the connection in which the word is used. In the present statute, we think the meaning is simply that of sexual intercourse, as in our laws upon marriage and legitimacy. The statute and these laws may be said to be kindred legislation; the statute merely, as it were, adding the sanction of punishment to the prohibitions contained in these laws against the union of persons within the prohibited degrees of relationship.

When the statute makes use of the expression "shall intermarry, or cohabit without marriage," it uses the word cohabit in the same sense as do the articles 188 and 189, Rev. Civ. Code, when they speak of the possibility of the husband's "cohabiting" with his wife. These articles do not use the word in the sense of the possibility of the husband's "dwelling with his wife," or of the possibility of his "holding her out to the world as his wife," but simply of the possibility of his having access to her. Tate v. Penne, 17 Mart. (N.S.) 548-555.

Article 111 of the Code provides that a marriage celebrated without the free consent of both parties may be annulled, provided the parties have not "freely and without constraint cohabited together after recovering their liberty."

Commenting on the corresponding article of the Code Napoleon, which, unlike ours, requires that the cohabitation shall have lasted six months, Marcade says:

"Tacit ratification results, according to terms of article 181, from a cohabitation continued during six months after the recovery of liberty, or after the discovery of the error. It could not be found in any other circumstances whatever. Thus, the pregnancy of the woman, even if occurring after the discovery of the error, or after the recovery of liberty, would be inefficacious. For this pregnancy simply proves that there has been cohabitation; whereas, it is not any kind of cohabitation that the law requires, but one that has continued for six months."

Thus, the great commentator uses the word "cohabitation" in the sense of congress. And our article 111 manifestly uses it in the same sense. No one could doubt that a marriage would be ratified by the voluntary cohabitation of the parties in the sense of sexual intercourse, irrespective of any dwelling together.

So far as concerns the underlying motives of the statute, we need not go elaborately into them. Suffice it that we know that the statute has been dictated by the moral sense of the community, to which the sexual intercourse of persons within the prohibited degrees is abhorrent. Beyond the ascertainment of the existence of this moral sense, and that it was it that dictated the statute, we see no use in going. Beyond that point, the question ceases to be one of law, or of the interpretation of statutes, and degenerates into one purely of sociology. The inquiring student, however, who wishes to know why such unions are deemed unnatural, and why they are offensive to the moral sense of modern society, will find the matter fully discussed in connection with the laws that fix the degrees of relationship within which marriage is prohibited. The French commentators are copious on the subject, and Montesquieu, Esprit des Lois, book 26, c. 15, is interesting. The sexual intercourse within the prohibited degrees is just as offensive to the moral sense of the community if accomplished by force or fraud as if accomplished by consent, and, hence, is as much within the spirit of the statute in the one case as in the other.

Coming to the decisions of the courts of other states interpreting statutes on the subject of incest, we note, first of all that these decisions can be of assistance only in so far as the reasoning by which they are supported is applicable to our statute. In other words, incest not being a common-law crime, these decisions have no common-law authority. As observed by Mr. Wharton, in speaking of incest: "From the reason that the subject is generally absorbed by statute, no decision of its common-law character is to be cited." Crim. L. (7th Ed.) § 2669a. If we consult these decisions, however, we find them to be fairly divided. See A. & E.E. of Law, vol. 16, p. 135. To the list there given may be added the recent cases of Davis v. People (Ill.) 68 N.E....

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