State v. De Hart
| Decision Date | 02 February 1903 |
| Docket Number | 14,553 |
| Citation | 33 So. 605,109 La. 570 |
| Court | Louisiana Supreme Court |
| Parties | STATE v. DE HART |
Appeal from judicial district court, parish of St. Mary; Albert Campbell Allen, Judge.
Isaah De Hart was convicted of crime, and appeals. Affirmed.
Placide P. Sigur and John B. Roberts (Foster, Milling, Godchaux & Sanders, of counsel), for appellant.
Walter Guion, Atty. Gen., and W. K. Wilson, Dist. Atty. (Lewis Guion, of counsel), for the State.
The indictment against this man was that he did, on or about a time named, willfully, feloniously and knowingly cohabit with his daughter, Desse De Hart -- the parties being related to each other within the degrees of consanguinity within which marriage is prohibited by articles 94 and 95 of the Civil Code of Louisiana.
The jury returned the simple verdict "Guilty," and from a sentence and judgment of 20 years at hard labor, he appeals.
A motion to quash the indictment, a motion in arrest of judgment and an objection (shown by a bill of exception) to any evidence in proof of the charge of the indictment, raise practically, the same issues.
The first contention is that the law of the state does not define what incest is, nor denounce it as a crime.
The second contention is that Act No. 78 of 1884, which is the statute under which the indictment is laid, is unconstitutional in that in its enactment articles 29, 30 and 31 of the Constitution of 1879, the then organic law, were violated.
A third contention is that a crime cannot be defined by a reference to a body of laws relating to private rights.
The first prosecution for incest, under this statute, that found its way to this court, was in the year 1878. -- State v. Henry Smith, 30 La.Ann. 846.
It was there held that the crime of incest, although denounced, was not defined by any statute of the state, and, hence, the conviction of the accused could not stand.
It will be observed this statute makes incestuous cohabitation (in the sense of "carnal connection") between a man and woman who are related to each other within the degrees of consanguinity within which marriage is prohibited by articles 94 and 95 of the Code.
Consanguinity means the connection or relation of persons descended from the same stock or common ancestor, and it is either lineal or collateral. Lineal is that which subsists between persons of whom one is descended in a direct line from the other, as between son, father, grandfather, great-grandfather and so upwards in the direct ascending line; or between son, grandson, great-grandson and so downwards in the direct descending line. Collateral kindred agree with the lineal in this, that they are descended from the same stock or ancestor, but differ in this, that they do not descend one from the other.
2 Blackstone's Com. 202; Black's Law Dict.; Bouvier's Law Dict.
Article 94 of the Code prohibits marriage between persons related to each other in the direct ascending or descending line, and this prohibition extends alike to legitimate and illegitimate children.
Article 95 prohibits marriage among collateral relatives as follows: -- between brother and sister, whether of the whole or of the half blood, whether legitimate or illegitimate, between uncle and niece, between aunt and nephew, and also between first cousins (the inhibition as to first cousins being added by Act No. 9 of 1902).
The case of the defendant at bar comes within the prohibition of article 94.
He is charged with carnally knowing his own daughter. She is related to him in the direct descending line, and the act of 1884, taken in connection with the article of the Code, specifically defines this to be incest. It was cohabitation with one related to him within the degree of consanguinity prohibited by law.
The definition is legally sufficient. State v. Guiton, 51 La.Ann. 156, 158, 159, 24 So. 784.
Nor is there force in the contention that the law does not denounce incest, as thus defined, a crime.
An act, a thing done, is denounced when the law declares it a crime and provides a punishment for it.
The statute of 1884 does both. Its very title is "to define the crime of incest and provide for the punishment thereof," and in the body of the act it is prescribed that he who cohabits with one within the prohibited degrees of consanguinity shall be deemed guilty of incest -- i. e., the crime of incest -- and on conviction thereof shall suffer imprisonment at hard labor for not less than 10 nor more than 20 years.
"Every law enacted by the General Assembly," declares article 29 of the Constitution of 1879 and article 31 of the Constitution of 1898, "shall embrace but one object, and that shall be expressed in its title."
The statute of 1884 does not contravene this provision of the organic law. There is but one object embraced in the law, and that object is expressed in its title."
The "object" of a law is the aim or purpose of the enactment. State v. Ferguson, 104 La. 249, 28 So. 917.
The aim and purpose of the act of 1884 is to prevent the crime of incest by punishing it.
The definition of the crime and the denunciation of it, by the infliction of a penalty for its commission, are part and parcel of the one object of the law.
Nor does the statute under discussion contravene article 30 of the Constitution of 1879, which is the same as article 32 of the Constitution of 1898.
These articles provide that no law shall be revived or amended by reference to its title, but in such cases the act revived, or section amended, shall be re-enacted and published at length.
The statute of 1884 does not assume to revive or amend any law or statutory enactment by reference to its title, or otherwise.
It is, itself, an independent, substantive enactment, repealing, by express declaration, all laws or parts of laws in conflict with it.
Articles 31 of the Constitution of 1879 and 33 of the Constitution of 1898 prohibit the General Assembly from adopting any system or code of laws by general reference to such system or code, and provide that in all cases there shall be recited at length the several provisions of the laws it may enact.
The argument of the defendant is that when the act of 1884 declares that whoever shall cohabit with a person related within the degrees of consanguinity within which marriage is prohibited by articles 94 and 95 of the Civil Code, it infringes the Constitution in that it is the attempted adoption of a system or code of laws by general reference to the same, instead of reciting at length the provisions thereof it proposes to enact.
His counsel declare the framers of the Constitution meant to avoid the very thing which the act of 1884 attempted to do, viz: -- define a criminal offense by reference to some system of laws, which it was difficult to know well at any time, and which difficulty would increase as society receded from the time of its adoption.
The plausibility and apparent force of this argument disappears when we consider articles 30 and 31 of the Constitution of 1879 (identical with articles 32 and 33 of the Constitution of 1898) in connection with each other, and when we come to ponder upon the intent and meaning of the later article.
Article 30 has reference, clearly, to our own laws or statutes, which are not to be revived or amended by reference to title merely, but there is to be a re-enactment and publication in full of the act revived or section amended.
Then follows article 31 prohibiting the adoption of any system or code of laws by general reference to the same.
We are inclined to think that the words "any system or code of laws," as used in the article, means systems or codes of laws other than our own -- systems of law, codes of law in vogue in other countries and jurisdictions; that these are not to be adopted by merely a general reference to the same, but that such systems or codes, or the several provisions of the same, wanted to be adopted or enacted here, are to be recited at length in the adopting act.
And this view is strengthened when it...
To continue reading
Request your trial
-
Battles v. State
...110 Mich. 412, 68 N. W. 233; State v. Markins, 95 Ind. 464, 48 Am. Rep. 733; Lefforge v. State, 129 Ind. 551, 29 N. E. 34; State v. De Hart, 109 La. 570, 33 South. 605—cases covering prosecutions for various forms of illicit commerce between the sexes, fornication, adultery, and incest. Upo......
-
Skidmore v. State
...N. W. 613; Smith v. Com., 109 Ky. 685, 60 S. W. 531, 22 Ky. Law Rep. 1349; Mathis v. Com., 13 S. W. 360, 11 Ky. Law Rep. 882; State v. De Hart, 109 La. 570, 33 South. 605; People v. Skutt, 96 Mich. 449, 56 N. W. 11; People v. Cease, 80 Mich. 576, 45 N. W. 585; People v. Jenness, 5 Mich. 305......
-
State v. Hauser
... ... publishing, then is not that part of the count referring only ... to the publishing to be rejected as surplusage, and is not ... the indictment good for forgery? The indorsement of the ... character of the offense cannot be considered. State v ... De Hart, 109 La. 570, 33 So. 605. We suggest this only ... as a reply to the defendant's contention, as in this ... third count the prosecuting officer clearly intended to ... charge the publishing, and not the forgery, and the jury ... clearly intended to convict Hauser of the publishing, and, in ... ...
-
State v. Kavanaugh
... ... State ... v. Williams, 7 Rob. 252; State v. King, 12 La.Ann. 593; State ... v. Smith, 30 La.Ann. 846; State v. Peters, 37 La.Ann. 730; ... State v. Gaster, 45 La.Ann. 636, 12 So. 739; State v ... Desforges, 47 La.Ann. 1167, 17 So. 811; State v. De Hart, 109 ... La. 570, 33 So. 605; State v. Breffeihl, 130 La. 904, 58 So ... 763, 40 L.R.A.,N.S., 535; State v. Comeaux, 131 La. 930, 60 ... So. 620; State v. Robinson, 143 La. 543, 78 So. 933; State v ... Bischoff, 146 La. 748, 84 So. 41; [203 La. 28] State v ... Mullen, 160 La. 925, 107 So ... ...