State v. Fritts & Phillips

• Decision Date: 04 December 1886
• Citation: State v. Fritts & Phillips, 48 Ark. 66, 2 S.W. 256 (Ark. 1886)
• Parties: STATE v. FRITTS and PHILLIPS and STATE v. PHILLIPS AND FRITTS
• Court: Arkansas Supreme Court

2 S.W. 256

48 Ark. 66

STATE v. FRITTS and PHILLIPS and STATE v. PHILLIPS AND FRITTS

Supreme Court of Arkansas

December 4, 1886

APPEAL from Carroll Circuit Court, Hon. J. M. PITTMAN, Judge.

Judgment affirmed.

Dan W Jones, Attorney-General, for appellant.

The appellees were indicted for incest, they being first cousins and the indictment was overruled on demurrer. It was drawn in strict conformity with secs. 1578 and 4592, Mans. Dig. The former section declared that persons within the prohibited degree of matrimony who should commit adultery or fornication should be guilty of incest; the latter declares marriages between first cousins to be absolutely void. Though it was enacted subsequently to the first, yet it was enacted prior to the commission of the offense, and the legislature passed it with full knowledge of the former, and so as to make it active in conjunction therewith. A crime prohibited by the statutes is certainly charged in apt terms. The statute not making knowledge of the relationship an ingredient of the crime, it was unnecessary to allege it. Secs. 358, 732-3 Bish. Stat. Cri.

O. W. Watkins, for appellees.

This indictment is bad because the fact of a legal marriage between the defendants is not negatived. All the allegations in the indictment may be true and still defendants not be guilty of incest. Cloud v. State, 36 Ark. 151; State v. Keith, 37 Ark. 96; Johnson v. State, 37 Ark. 93; Hopper v. State, 19 Ark. 143.

This indictment attempts to charge incest by charging that defendants committed fornication. It therefore devolves upon the state to allege and prove that defendants were not lawfully married. Montana v. Whitcomb, 1 Mont., 359; Moore v. Commonwealth, 6 Metcalf (Mass.), 243; Commonwealth v. Reardon, 6 Cush., 79; Same v. Murphy, 2 Allen, 164.

Defendants could be lawfully married by the laws of most states and in other countries; and the marriage being lawful where made would be lawful everywhere, and they could not commit fornication or adultery, because if lawfully married they could not commit either fornication or adultery. The meaning of the statute, sec. 1568, Mans. Dig., is that if persons marry who are within the degrees of consanguinity in which marriages are prohibited, they commit incest. Or if parties within these degrees commit fornication or adultery they are guilty of incest. In other words, incest is a marriage between persons related by blood to each other within the degrees in which marriage is prohibited. Or it is fornication or adultery between persons within these degrees, and an indictment to charge incest, under the second clause of the statute, would have to contain all the averments that an indictment would for the offense of fornication or adultery. Upon this point see particularly the following cases: Montana v. Whitcomb, supra; Moore v. Commonwealth, supra; Wharton Am. Cr. Law, 2658; State v. Moss, 26 Mo. 260.

OPINION

SMITH, J.

The indictment in the case first above mentioned charged that the defendants "in the said county of Carroll, etc., on the 20th day of December, 1884, unlawfully, wickedly, feloniously and incestuously did cohabit, fornicate, and each other there and then criminally and carnally know, he, the said James Fritts, then and there being a man, and she, the said Mattie Phillips, being a woman, and they, the said James Fritts and Mattie Phillips, then and there being first cousins, against the peace," etc.

The indictment in the second case is similar. And both indictments were quashed on general demurrer.

Sec. 1578 of Mansf. Dig. reads as follows: "Persons marrying who are within the degrees of consanguinity within which marriages are declared by law to be incestuous, or void absolutely, or who shall commit adultery or fornication with each other, shall be deemed guilty of incest." And the next section makes the offense a felony.

Sec. 4592, being the amendatory act of March 5, 1875, enacts that "all marriages between parents and children, including grand-parents and grand-children of every degree; between brothers and sisters of the half as well as the whole blood; between uncles and nieces, and between aunts and nephews, and between first cousins, are declared to be incestuous and absolutely void. This section shall extend to illegitimate children and relatives."

The intention of the legislature was to prohibit the intermarriage of persons nearly related by blood, partly, no doubt, on account of the supposed evil consequences to body and mind resulting to the offspring of such marriages. And this intention is accomplished by...