State v. Nakashima

• Decision Date: 05 April 1911
• Citation: 62 Wash. 686,114 P. 894
• Parties: STATE v. NAKASHIMA.
• Court: Washington Supreme Court

114 P. 894

62 Wash. 686

STATE v. NAKASHIMA.

Supreme Court of Washington

April 5, 1911

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Criminal prosecution by the state of Washington against Masaji Nakashima. From a judgment sustaining an objection to the introduction of evidence and dismissing the prosecution, the State appeals. Reversed.

George F. Vanderveer and J. L. Finch, for the State.

Burkey O'Brien & Burkey, for respondent.

CROW J.

This is an appeal by the state of Washington from a judgment sustaining an objection to the introduction of evidence, and dismissing a criminal action.

The controlling question is the sufficiency of the information the charging portion of which reads as follows: 'He, the said Masaji Nakashima, a male person, and she, said Tama Kawamura, a female person, in the county of King, state of Washington, on the 20th day of November, 1909, being then and there first cousins, computing by the rules of the civil law did then and there willfully, unlawfully, and feloniously have sexual intercourse together.' The state elected to first try the respondent Masaji Nakashima who, after the jury had been impaneled, objected to the introduction of any evidence, contending that the information did not charge any crime; it having failed to negative a marriage between the defendants.

Section 2455, Rem. & Bal. Code, reads as follows: 'Whenever any male and female persons, nearer of kin to each other than second cousins, computing by the rules of the civil law, whether of the half or the whole blood, shall have sexual intercourse together, both shall be guilty of incest and punished by imprisonment in the state penitentiary for not more than ten years.'

Marriages in this state are prohibited between parties nearer of kin to each other than second cousins, either of the whole or half blood, computing by the rules of the civil law. Rem. & Bal. Code, § 7151. This court, in Johnson & Johnson, 57 Wash. 89, 106 P. 500, 26 L. R. A. (N. S.) 179, held void a marriage between first cousins domiciled in this state, who, for the purpose of avoiding the law of this state, had visited a foreign jurisdiction where first cousins could lawfully marry, had there contracted the relation, and had immediately returned to this state to live as husband and wife.

Mr. Bishop defines incest as follows: 'Incest, where statutes have not modified its meaning, is sexual commerce, either habitual or in a single instance, and either under a form of marriage or without it, between two persons too nearly related in consanguinity or affinity to be entitled to intermarry.' Bishop, Stat. Crimes (3d Ed.) § 727; 22 Cyc. 43.

Our statute, section 2455, supra, in defining incest, makes no distinction between persons who claim to have been lawfully married, or to have gone through the form of a marriage ceremony, and those who are unmarried.

It is suggested in respondent's brief that section 7151, Rem. & Bal. Code, supra, prohibiting first cousins from marrying in this state, has by implication been repealed and superseded by section 2455, supra, the same being section 203 of the Criminal Code of 1909, defining incest, and by chapter 16, Laws of 1909, Extraordinary Session, relating to and prohibiting marriages in certain cases. This contention is without merit. There is nothing in the act last above mentioned indicating any intention of the Legislature to legalize marriages between parties nearer of kin than second cousins. Respondent's counsel in their brief thus state their contention: 'We will simply state that the position of the trial court was, and that of respondent is, that, viewing as a whole the law applicable to the situation, the Legislature did not intend to make criminal intercourse between persons who at the time are legal husband and wife and recognized as such by the laws of this state, and hence such persons, living in the married relation, are guilty of no offense, even if first cousins, and that to charge one with incest in the language of the particular statute is insufficient within stating therein also the facts showing the accused to belong to the class against which the statute is directed, viz., persons not lawful husband and wife. It is respondent's contention that the statute in question should be construed as containing an exception in favor of persons who are lawful husband and wife, and, so construing it, the exception should be negatived in the information.' Respondent calls attention to the fact that, in many foreign jurisdictions, including some of the American states, legal marriages may be contracted between first cousins then domiciled in such jurisdiction; and contends that, if thereafter they should become citizens of this state, they would be entitled under the laws of comity to be here regarded as legally married.

In State v. Fenn, 47 Wash. 561, 92 P. 417, 17 L. R. A (N. S.) 800, we said: 'In support of its appeal the state relies upon the two general propositions that a marriage valid where contracted is valid everywhere, and that statutes declaring a second marriage unlawful, pending the time for appeal from divorce proceedings and imposing a penalty for their violation, are penal in their nature and have no extraterritorial effect. The general doctrine that a marriage valid where contracted is valid everywhere has so often been declared by the courts and reiterated by text-writers that it has become a maxim of the...