State v. Lawrence
Decision Date | 11 March 1886 |
Citation | 19 Neb. 307,27 N.W. 126 |
Parties | STATE v. LAWRENCE. |
Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Platte county.
William Marshall, Dist. Atty., for the State.
McAllister Bros. and McFarland & Cowdery, contra.
The defendant was indicted under section 204 of the Criminal Code for the crime of incest. The indictment contained two counts: the first charged the crime to have been committed on the first day of April, 1884; the second alleged the date of the cohabitation to be on the first day of April, 1882, and on divers other days and times between that day and the first day of April, 1884.
On the trial the court, on motion of the defendant, required the prosecutor to elect as to which count of the indictment he would proceed upon. This ruling was excepted to, and is assigned as error by the district attorney. At the close of the evidence on the part of the prosecution a motion was made by the defendant to dismiss the cause for the reason that the evidence did not sustain the charge made in the indictment. This motion was sustained by the court, and the cause dismissed without a verdict. To this the district attorney also excepted, and now brings the cause into this court on error, under the provisions of section 515 et seq. of the Criminal Code. We think it is quite true, as claimed by the plaintiff in error, that the first count in the indictment contains sufficient to charge a crime under the section above alluded to; for, as said in Desty, Amer. Crim. Law, § 88 b: “If the parties for a single day live together in adulterous intercourse, intending its continuance, the offense is complete.” It is equally true that the second count charges a crime, for the offense is a continuing one, and may be laid with a continuendo. State v. Way, 5 Neb. 283.
The objection to this indictment is that the date fixed by the first count, to-wit, the first day of April, 1884, is not included in the time stated in the second count, to-wit, on the first day of April, 1882, and on divers other days and times between that date and the first day of April, 1884; thus excluding the last date. It cannot, therefore, be said that the two counts charge the same offense, but in different forms, to meet the evidence, which is permissible in criminal practice, (1 Bish. Crim. Proc. § 420;) but the dates being different, and the first count not being included in the second as to time, it may be said that each count charges separate and distinct felonies, which should not be joined in the same indictment, and for that reason we cannot say the court erred in compelling the election. Especially is this true, since it is a matter largely within the discretion of the trial court. Id. § 454, and cases cited in note; Bailey v. State, 4 Ohio St. 440; Moore, Crim. Law, § 800, and cases there cited.
The remaining question is one of much more importance, and in which, to the mind of the writer, there is much difficulty. It is a fundamental rule for the construction of statutes that the several parts of the law should be so construed as to give effect to the legislative intent, and to give some force and effect to every section and part of the law. With this rule before us, we must adopt the views of the plaintiff in error as to the construction of the section of the criminal law referred to, or ignore it entirely as an unmeaning section. We quote sections 202, 203, and 204 of the Criminal Code:
“Sec. 202. Marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half, as well as the whole, blood, and between uncles and nieces, aunts and nephews, are declared to be incestuous and absolutely void. This section shall extend to illegitimate, as well as to legitimate, children and relations.
Sec. 203. Persons within the degrees of consanguinity within which marriages are declared by the preceding section to be incestuous and void, who shall intermarry with each other, or who shall commit adultery or fornication with each other, or who shall lewdly and lasciviously cohabit with each other, shall be liable to indictment, and upon conviction be punished by imprisonment in the penitentiary not exceeding ten years.
Sec. 204. If a father shall rudely and licentiously cohabit with his own daughter, the father shall, on conviction, be punished by confinement in the penitentiary for a term not exceeding twenty years.”
The evidence introduced on the trial, together with the motion of the defendant to dismiss the cause, and the ruling of the court, are thus stated in the abstract:
By the foregoing it will be seen that while the witness and daughter resided with the defendant it was not in any other capacity, so far as outward manifestations and representations were concerned, than as a member of his family, and not as his wife, he having a wife residing with him at that time. The contention of the defendant...
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