State v. Hertges

• Decision Date: 11 December 1893
• Citation: State v. Hertges, 55 Minn. 464, 57 N.W. 205 (Minn. 1893)
• Parties: STATE v. HERTGES.
• Court: Minnesota Supreme Court

55 Minn. 464

57 N.W. 205

STATE

v.HERTGES.

Supreme Court of Minnesota.

Dec. 11, 1893.

(Syllabus by the Court.)

The crime of incest was punishable under section 259 of the Penal Code, prior to the passage of Gen. Laws 1893, c. 90.

Certified from district court, Stearns county; Searle, Judge.

William Hertges was convicted of incest, and the proceedings were certified to the supreme court for an opinion. Affirmed.

H. W. Childs and Geo. B. Edgerton, for plaintiff.

Bruckart & Brower, for defendant.

COLLINS, J.

The defendant was indicted for the crime of incest, alleged to have been committed prior to the passage of Gen. Laws 1893, c. 90,¹ and after trial and conviction a report of the case was certified up for our decision, under the provisions of Gen. St. 1878, c. 117, § 11. The claim is made in defendant's behalf that under the laws of this state as they existed at the time specified in the indictment incest was not a crime. Prior to the amendment of 1893, section 259 of the Penal Code read as follows: “Incest. When persons within the degrees of consanguinity within which marriages are declared by law incestuous and void, intermarry or commit adultery or fornication with each other, each of them is punishable by imprisonment in the state prison for not more than ten years.” It is contended by defendant's counsel that, as the only statutes which bear upon the subject-one prohibiting the contract of marriage between parties who are nearer of kin than first cousins, computing by the rules of the civil law, whether the half or the whole blood, (Gen. St., supra, c. 61, § 3;) the other pronouncing such marriages void, (chapter 62, § 1)-fail to declare them incestuous, the offense cannot be committed; it being...