State v. Lamb
| Decision Date | 21 November 1929 |
| Docket Number | 39868 |
| Citation | 227 N.W. 830,209 Iowa 132 |
| Parties | STATE OF IOWA, Appellee, v. E. E. LAMB, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HERMAN F. ZEUCH, Judge.
The defendant was charged by indictment with the crime of incest in that he had carnal knowledge of the daughter of his half sister. To this indictment the defendant filed a demurrer which was overruled. Upon a plea of not guilty, trial was had to the jury, and a verdict of guilty was returned. Judgment was entered, in conformity to law. Defendant appeals.
Affirmed.
W Allen Whitfield, for appellant.
John Fletcher, Attorney-general, and Alexander M. Miller, Assistant County Attorney, for appellee.
DE GRAFF, J.
This is a case of novel impression in this court. There is but one question to be answered. Is the term "half sister" included in the term "sister," as found in the statute defining void marriages? Section 10445, Code of 1927. Stating the question presented in another form: Does the indictment charge a crime (incest), as defined in Section 12978, Code of 1927?
This court recognizes the rule that a conviction for crime will not be affirmed where no crime is charged in the indictment, irrespective of the diligence of the appellant in pointing out the defect to the trial court. State v. Daniels, 90 Iowa 491, 58 N.W. 891. We are not dealing with a code of ethics, but with legislative enactment and legal definition. In defining crime, the sovereign state does not attempt to effectuate justice in an ethical sense, although its power to do so is unlimited. This is true even as to tort. Ex Parte United States, Owner of the "Western Maid," 257 U.S. 419, l. c. 433. Common-law crimes are not recognized in Iowa. Sometimes we resort to the common law for definition, but no act is a crime in this state unless made punishable by law. State v. Banoch, 193 Iowa 851, 186 N.W. 436. The crime of incest was not known to the common law.
We first turn to the statutes of Iowa which have reference to the matter involved in the case at bar. Section 12978 provides:
"If any persons, being within the degrees of consanguinity or affinity in which marriages are declared by law to be void, carnally know each other, they shall be guilty of incest, and imprisoned in the penitentiary not exceeding twenty-five years."
What degrees of consanguinity or affinity are included? See State v. Andrews, 167 Iowa 273, 149 N.W. 245. This question must be answered by Section 10445, under the caption "Void Marriages." This section, after all defined sexual relations not pertinent to the instant case have been eliminated, reads:
(Italics by the writer.)
It is well at this point to visualize the background of the law of incest. It found its origin in the Mosaic Law, and it is sufficient to read Verse 11, Chapter 18, of Leviticus: "The nakedness of thy father's wife's daughter, begotten of thy father, she is thy sister, thou shalt not uncover her nakedness." This is one of the several provisions defining and forbidding incest, and constitutes one of the injunctions under the Mosaic Law, for it is commanded in Deuteronomy, Chapter 8, Verse 2, "And thou shalt remember all the way which the Lord thy God led thee;" and the test of that remembrance is "whether thou wouldest keep his commandments, or no." As instances of the violation of these Mosaic Laws, we need but cite the names of Lot, Abimelech, Nahor, Reuben, Amram, Judah, and Amnon.
These commandments of the Mosaic Law found their way to the Christian church at Rome, and were later adopted by the ecclesiastical courts of England and became a part of the ecclesiastical law. Subsequently, statutes were enacted by Parliament which were based on the ecclesiastical table of degrees established by Archbishop Parker in 1563. For further study and investigation, see Annotation L. R. A. 1916C 690.
The statutes governing this subject as enacted by the legislature of the states of this Union, although not altogether uniform, are to a large extent copied from the English statutes. It may further be stated that the text-writers on this subject quite uniformly assert that the incestuous prohibition applies to near relatives, whether by the half blood or the whole blood, and whether legitimate or illegitimate. See Keezer on Marriage and Divorce (1923), Section 110; 1 Schouler on Marriage, Divorce, Separation and Domestic Relations (1921) 22, Section 16; 2 Nelson on Divorce and Separation (1895), Section 710; 1 Bishop on Marriage, Divorce and Separation (1891), Section 748. All of these eminent writers recognize and state that the relation by half blood is in the same category as the relation by whole blood, and Bishop, supra, adds:
"* * * so that, for example, it is incestuous for a man to marry the daughter of his brother of half blood, or the daughter of his half sister."
In an early English case, Butler v. Gastrill, Gilbert's Reports 156 (25 Eng. Reprint 110), decided in 1721, it is said:
"And when we consider who are prohibited to marry by the Levitical Law, we must not only consider the mere words of the law itself, but what, from a just and fair interpretation, may be deduced from it * * *."
See, also, Regina v. Inhabitants of Brighton (Eng. 1861), 1 B. & S. 447 (121 Eng. Reprint 782).
In the matter of construing a criminal statute, we may quote the language of one of the latest cases decided by the Supreme Court of the United States (April 22, 1929), wherein it is said:
"We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." Roschen v. Ward, 279 U.S. 337 (73 L.Ed. 722, 49 S.Ct. 336).
We now ask what has been the attitude and the interpretation given by our sister states on statutes similar to the enactment on the subject in Iowa. Probably the leading case, which had its finality in the Supreme Court of Vermont in 1887, is State v. Wyman, 59 Vt. 527 (8 A. 900, 59 Am. Rep. 753). Under the Vermont statute (Revised Laws of Vermont 1880, Section 2306), the prohibition reads: "No man shall marry * * * his brother's daughter. * * *" In the Wyman case, supra, it was contended that the word "brother" in the statute was not broad enough to cover the brother of half blood, since the case involved the daughter of a half brother. The common law governing the law of descent was urged, in that a brother of the half blood could not inherit; but it was held that the commonlaw rule relied upon by appellant had no force in a case of this kind. As to the meaning to be given the word "brother," it is said:
"* * * but the generally understood significance of the word 'brother,' as used in the common affairs of life, and as defined by the lexicographers of recognized authority, should be adopted in the construction of the statute."
The case at bar involves the word "sister," and the definition given in Webster's New International Dictionary reads:
"A female * * * considered in her relation to another person * * * having the same parents (whole sister), or one parent in common (half sister)."
In Commonwealth v. Ashey (1924), 248 Mass. 259 (142 N.E. 788), a half-sister's daughter was involved in an indictment charging incest. The statutory prohibition (General Laws of Massachusetts 1921, Chapter 207, Section 1) provides: "No man shall marry his * * * sister's daughter." It appears that this also was a case of first impression in the Supreme Court of Massachusetts. After citing certain decisions hereinafter mentioned, the court said: "In view of this uniform line of authorities we are of opinion that the defendants come within the prohibition * * *." The Massachusetts court also followed the Vermont decision, quoted supra herein, in holding that the ancient system of feudal tenures and rules of descent had no relation to the statute defining and punishing incest.
In Shelly v. State (1895), 95 Tenn. 152 (31 S.W. 492, 49 Am. St. 926), the facts involve an alleged incestuous intercourse by the appellant with the daughter of his half sister. The primary contention, as indicated by the terse opinion filed in that case, was to the effect that the term "sister," as used in this connection, did not include a half sister. It was held: "* * * the offense would be the same as if she had been the daughter of a full sister."
The oldest American decision of this character that has been called to our attention is People v. Jenness (1858), 5 Mich. 305. It was charged that the defendant committed fornication with a certain named female, Delia E. Ashcroft, who was the daughter of the defendant's sister. The question, however, arose whether or not the mother of Delia was a half sister or a sister of the whole blood. The Michigan statute then in force (2 Compiled Laws of Michigan 1857, Section 3206, Paragraph 3) provided: "No man shall marry his * * * sister's daughter. * * *" In the opinion it is said:
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