State v. Hurd
| Decision Date | 07 April 1897 |
| Citation | 70 N.W. 613,101 Iowa 391 |
| Parties | STATE OF IOWA v. WILLIAM H. HURD, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.
INDICTMENT for incest. Verdict of guilty, and a judgment thereon, from which the defendant appealed.
Affirmed.
Wright & Hubbard and T. F. Bevington for appellant.
Milton Remley, attorney general, J. W. Hallam, county attorney, and Jesse A. Miller for the state.
OPINION
I.
The defendant moved to quash the indictment, for different reasons. It appears that there were before the grand jury certain pictures and letters that were not returned with the indictment to the clerk, nor filed in his office, but were kept in the office of the county attorney, and it is thought that the indictment should be quashed for that reason. The letters and pictures are documentary, and, as evidence before the grand jury, it was not necessary to set them out or note them in the minutes of the evidence. State v. Mullenhoff, 74 Iowa 271 (37 N.W. 329). It follows that such evidence is not what is meant when minutes of evidence are required to be kept. It is provided by section 4337 of the Code, that an indictment must be set aside on motion "when the minutes of the evidence of witnesses examined before the grand jury are not returned therewith." It will be seen that the minutes required to be returned are those of the evidence of witnesses, and not of all the evidence. There is a plain limitation as to the kind of evidence contemplated. These letters and pictures were not used on the trial of the indictment, and may be regarded as immaterial, in which case, even though it was the evidence of a witness, it could be disregarded. State v Little, 42 Iowa 51. See, also, State v. Miller, 95 Iowa 368 (64 N.W. 288). The word "witnesses," used in the section, means "persons." State v. Farrington, 90 Iowa 673 (57 N.W. 606.
II. The minutes of the testimony of the witnesses examined before the grand jury were taken by the clerk of the grand jury, and then taken and copied by a stenographer and typewriter in the office of the county attorney, and it is the copy made by her that was returned with the indictment into court. This fact is also made a ground of the motion to quash the indictment. It is not pretended but that the minutes returned are correct. They were before the grand jury, recognized by it as the minutes of the evidence taken before it, and by it returned into court with the indictment. We know of nothing in the letter or spirit of the law to make it necessary for the grand jury to return the minutes of the evidence in the handwriting of its clerk. The important thing is that they shall be the same as those written by him. The irregularity, if it be one, is without the slightest prejudice.
III. The indictment charges, as the act constituting the offense, that the defendant had carnal knowledge of his daughter, but it does not charge that the parties to the act had carnal knowledge of each other. It is strenuously contended that, because of a failure to so charge, the indictment is fatally defective. A demurrer to the indictment, which the court overruled, presents this question. In State v. Chambers, 87 Iowa 1 (53 N.W. 1090), the question whether mutual carnal knowledge, or consent, was necessary to constitute the crime of incest, was considered on an assignment of error to a refusal to give an instruction embodying a rule to that effect. We there held that such knowledge was not necessary, but that such knowledge by the defendant was sufficient. In support of that holding, we cited State v. Sanders, 30 Iowa 582; State v. Donovan, 61 Iowa 278 (16 N.W. 130), and Commonwealth v. Bakeman, 131 Mass. 577. The correctness of the holding in State v. Chambers is doubted, and it is said, that the cases cited for its support, are all adultery cases, which is true. It is also said, that we failed to notice two cases in this state, which are against our conclusion. In U. S. v. Hiler, 1 Morris 330, the court construed a statute providing that, "any brother and sister, who, being of the age of sixteen years or upwards, shall have sexual intercourse together, having knowledge of their consanguinity," are guilty of incest. The question decided was, whether, if the brother was over the age of sixteen years, and the sister under that age, he could be convicted. It was held, that he could not. While in some respects there is a logical relation between the question presented in that case and in this, an examination of the opinion in that case will show a distinguishable difference. The case is made to turn on a literal adherence to the wording of the statute, that "any brother and sister, who, being of the age of sixteen years," etc.; and the opinion suggests the reasons why such intercourse with a girl under sixteen years should not constitute incest. No such reasons appear for the rule contended for in this case. In State v. Thomas, 53 Iowa 214 (4 N.W. 908), the question arose on objections to an indictment where, in separate counts, the crimes of rape and incest were charged. The indictment was held bad for duplicity, as charging two offenses. The state urged, in support of the indictment, that incest was necessarily included in rape when the parties were related within the prohibited degrees, because of which a party might be charged with both crimes in the same indictment, and convicted of incest, if not of rape. Argumentatively, language is used in the opinion that directly sustains appellant's position. The holding in that case was by a divided court,--three to two. The question in neither the Hiler nor the Thomas Case is identical with that determined in the Chambers Case, and involved in this. We are still content with our conclusion in the Chambers Case, and while it is not in harmony with some of the reasoning in the Thomas Case, it is not to be understood that we express any opinion as to the conclusion in that case. Our statute, after specifying the prohibitive degrees as to marriage, provides (section 4030): "Or if any person, being within the degrees of consanguinity or affinity in which marriages are prohibited by this section, carnally know each other, they shall be deemed guilty of incest." Importance is attached to the words of the section, "they shall be deemed guilty of incest," being plural in form. In some cases, from other states, where the rule of appellant's contention is sustained, the same or similar words are thought to be quite indicative. It will be seen that harmony, as to number, is not preserved as to the pronoun "they" and its antecedent "person"; and if either is to yield, in the interest of a proper construction of the section, it may certainly as well be the pronoun as its antecedent term, and we think, grammatically speaking, better. We do not criticise the language of the section, but think the word "they" should be understood as equivalent to "both" or "each," which was evidently the intent. We do not refer to this as a controlling thought, but because of so much reliance on the particular form of expression. We attach greater importance to this thought; that in no reasonable sense could the guilt of one party be intended to depend on the guilty knowledge or purpose of the other. The distinguishing fact of this crime, from that of rape, seduction, and adultery, is the abhorrent one of the relationship of the parties, making the intercourse unnatural, sickening, and deplorable in its consequences, because of which such marriages are prohibited and made a crime. It is the particular carnal knowledge that constitutes the offense of each. We have seen no two statutes precisely alike in defining this crime, although there is quite a similarity. In Alabama, with a statute so similar that we can perceive no reason for a different holding, the following headnote has full support in the opinion: "A person may be convicted of incest though he accomplishes his purpose by such force as to render him also guilty of rape." Smith v. State (Ala.) 19 So. 306. See Bishop, St. Crimes, section 660; Mercer v. State, 17 Tex. Ct. App. 452; Com. v. Goodhue, 43 Mass. 193, 2 Met. 193. It has repeatedly been said that the authorities on this question are conflicting, which we find to be true. We have attempted to show no more than that our holding is not without support in other states.
IV. Two jurors were challenged for cause, after examination, and the challenge denied, and complaint is made. It is not important that we set out the examinations, for they are somewhat lengthy, and less than all would not accurately present the situation. They are cases in which, when part of the answers are considered, the showing is strongly in favor of the challenge; but when all is considered, the holding is clearly within the rule of such cases as State v. Munchrath, 78 Iowa 268 (43 N.W. 211); State v. Weems, 96 Iowa 426 (65 N.W. 387); State v. Yetzer, 97 Iowa 423 (66 N.W. 737).
V. Ida Hurd was not a witness before the grand jury, and her name is not on the indictment. She was sworn in behalf of the state and after she had answered some fifteen questions, without objection, one was interposed because her name was not on the indictment. An additional transcript by the state shows a notice to have been served, but owing to a question as to such transcript, we may, for the purposes of this question, disregard it, and dispose of the question on other grounds. That a defendant may waive the right to object to the examination of such a witness is held in State v. Ward, 73 Iowa 532 (35 N.W. 617), and State v. Houston, 50 Iowa 512. The statutory provision relied on is that the county attorney shall not introduce any witness,...
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