State v. Slaughter

• Decision Date: 31 October 1879
• Citation: 70 Mo. 484
• Parties: THE STATE v. SLAUGHTER, Appellant.
• Court: Missouri Supreme Court

70 Mo. 484

THE STATE

v.SLAUGHTER, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Clay Circuit Court.--HON. GEO. W. DUNN, Judge.

REVERSED.

H. L. Routt, G. S. Withers and Wm. M. Burris for appellant.

Section 6 says “within which marriages are, by law declared to be incestuous and void.” The statute in relation to marriages declares that marriages within certain degrees are absolutely void, but nowhere are any marriages declared incestuous and void. Other marriages, as between parties where either has a former husband or wife, are void under the law, but none are declared incestuous. Wag. Stat., §§ 2, 3, p. 929. The statute is too vague in defining the offense and no punishment is fixed for the same. “A case is not to be brought by construction within a statute unless it is completely within its words.” Bishop on Stat. Crimes, § 220.

J. L. Smith, Attorney-General, for the State.

The fallacy of the appellant's position lies in assuming that the phrase “as declared by law” means “as declared by statute” and nothing else. 2 Bouv. Law Dict., (14 Ed.) Tit. Law pp. 12, 14; Chamberlain v. Beller, 18 N. Y. 115; Wag. Stat., § 1, p. 886. By the law of nature and of God, all marriages between near relations by blood or marriage, are declared to be incestuous. 2 Kent Com., pp. 82, 83, 84; Sutton v. Warren, 10 Met. 451; Bishop Marr. & Divorce, §§ 376, 377; Wightman v. Wightman, 4 John. Ch. 343, 348; Story Conf. Laws, (Redf. Ed.) §§ 113, 113 a, 114, 114 a,i 114 b, et sq; 1 Bouv. Inst., (Gleas. Ed.) 9; Potter's Dwarris, 36, 37, 38. Prohibitions of the natural law are of absolute, uniform and universal obligations. They become rules of the common law which is founded in the common reason and acknowledged duty of mankind, sanctioned by immemorial usage, and as such, are clearly binding. 4 John. Ch. 350; 1 Shars. Blackst., 67, 79; 1 Kent Com., 469, 470. The general acquiescence of the courts, and the bar, in the doctrine that incest is punishable as a crime in this State, is apparent from the text books and our reports. Kelley's Crim. Law, § 844; State v. Bullirer 54 M o. 142.

HENRY, J.

At the March term of the Clay circuit court, the defendant was indicted under section 6, Wag. Stat., 499, and charged with lewdly and lasciviously abiding and cohabiting with Lucy Slaughter, he being her uncle. Section 6 reads as follows: “Persons within the degrees of consanguinity, within which marriages are, by law, declared 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, upon conviction, be adjudged guilty of incest, and shall be punished by imprisonment in the penitentiary not exceeding seven years.” The only persons who are punishable, under that section, for marrying, committing fornication or adultery, or lewdly and lasciviously cohabiting with each other, are those who are within the degrees of consanguinity within which marriages are declared to be incestuous and void. It is not sufficient that they are within the degrees of consanguinity within which marriages are declared to be void only. Section 6 is a penal statute, and is to receive a strict construction, and unless by the law of this State, when the acts alleged were committed, a marriage between an uncle and niece was declared to be incestuous, defendant could not have been guilty of any offense defined in that section. In the marriage act of 1835, “all marriages between parents and children, including grand children and grand parents 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;” and in the same revision was a section identical with that under which defendant was indicted. These two sections were retained in every subsequent revision of the statute until 1866, when the section of the marriage act prohibiting marriages between the persons therein designated, was amended by striking out the word “incestuous,” and including among forbidden marriages, those “between white persons and negroes.” There was, therefore, no statute in this State declaring any marriage incestuous when the defendant committed the act with which he is charged.

The attorney-general contends that, although this may be, yet that the common law in regard to incestuous marriages was then in force in this State. The section of the marriage act which forbade and declared incestuous and void, the marriages therein named, was in effect, a repeal of the common law. It covered the whole ground. In England there was a controversy between the temporal and the ecclesiastical courts, the latter greatly extending the impediments to marriage, and a statute was passed in the reign of Henry VIII...