State v. Jarvis

• Decision Date: 06 April 1891
• Parties: STATE v. JARVIS.
• Court: Oregon Supreme Court

26 P. 302

20 Or. 437

STATE v. JARVIS.

Supreme Court of Oregon

April 6, 1891

Appeal from circuit court, Multnomah county; L.B. STEARNS, Judge.

The defendant was indicted, tried, and convicted of the crime of incest, alleged to have been committed with his daughter Josephine Ross, on the 15th day of April, 1889, in Multnomah county, Or.

(Syllabus by the Court.)

On the trial of a defendant charged with the crime of incest it is error to admit evidence tending to prove him guilty of rape.

Under section 1873, Hill's Code, the crime of rape by forcible ravishment and incest cannot be committed by the same act. Rape is accomplished by the impelling will of one person, and incest by the concurrent assent of two.

Where the evidence of discloses that defendant committed the crime of rape, he cannot be convicted under an indictment charging the crime of incest.

An indictment under the statute of this state for the crime of incest should allege that the act charged was the joint act of both parties.

E Mendenhall and Sears & Beach, for appellant.

T.A Stephens, Dist.Atty., and W.T. Hume, for the State.

BEAN J.

In State v. Jarvis, 18 Or. 360, 23 P. 251, this defendant had been convicted of incest under an indictment charging him with both the crimes of rape and incest, but this court reversed the judgment, on the ground that the conviction was had on the uncorroborated testimony of the prosecutrix, who was an accomplice in the commission of the crime. After the case was remanded to the court below it would seem another indictment was found against the defendant, charging him with the crime of incest alone, upon which he was tried and convicted, from which he appeals. The first assignment of error necessary to notice is in the admission of the testimony of Mrs. Dr. Murray. The testimony of this witness was to the effect that, three or four or five years before the trial in the court below, she was consulted professionally by the prosecutrix, whom, on an examination she found suffering from some irritation of the vagina caused by some recent violence. This evidence was clearly irrelevant. It did not in any way tend to prove the guilt of this defendant. It is possible the evidence might have been competent had the charge against defendant been rape, and not incest. It could only be competent under the theory that the prosecutrix had been forcibly ravished; but when, as in this case, the crime charged is incest, it could in no way tend to prove that defendant was guilty as charged. Rape and incest are two distinct crimes, and what would be competent evidence in the one would not in the other. What has already been said requires the reversal of this case; but there was another question raised in the argument, which it is proper for us to consider, in view of the probability of another trial in the court below. In the case of State v. Jarvis, supra, in which this appellant was defendant, it was held that "in a trial for the crime of incest the party to the crime not on trial is an accomplice, and the other party cannot be convicted on her evidence, unless she be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." It is admitted in the case at bar that the conviction was had upon the uncorroborated testimony of the prosecutrix, but it is sought to avoid the rule announced in the case above cited, by claiming that she was compelled by force and threats to submit to the embraces of defendant, and was not therefore a willing participant in the commission of the crime, and not an accomplice. The prosecutrix testified that the incestuous intercourse commenced in 1884, when she was 16 years old, and continued as often as twice a week, and sometimes oftener, until April, 1889. That at no time did she willingly consent, but was compelled by force to submit. That at one time defendant presented a pistol at her, and said he would kill her if she refused; at another time he threatened her with an axe; and at another with a board. That she did not complain to any one, because defendant said he would shoot her if she told anybody about the matter. It was argued for the appellant that the crime of incest requires the concurring assent of both parties, and that, under the facts in this case, defendant was guilty of rape, if guilty of any crime, and could not be convicted of the crime of incest. The crime of incest was not indictable at common law, but is so only by statute. 4 Bl.Comm. 64; Bish. St. Crimes, § 728. To the statute alone, then, must we look for a definition of the crime, and for a solution of the question in this case. By section 1873, Hill's Code, it is provided: "If any persons, being within the degrees of consanguinity within which marriages are prohibited by law, shall intermarry with each other, or shall commit adultery or fornication with each other, such persons, or either of them, upon conviction thereof, shall be punished," etc. It will be noticed that the language of the statute is "with each other," which necessarily implies a concurrent act, and the consent of both parties. If one of the parties is compelled by force to submit to the act, there can be no consent of such party, and the act cannot be committed "with each other," as declared by the statute. Similar provisions in the statutes of sister states have been construed by the courts, and the overwhelming weight of authority is in favor of the construction above indicated. Thus, in People v. Jenness, 5 Mich. 321, it is said by CHRISTIANCY, J.: "This offense [incest] can only be committed by the concurrent act of two persons of opposite sexes; and the assent or concurrence of the one is as essential to the commission of the offense as that of the other; and, as a general rule, both must be guilty, or...