State v. Thomas
| Decision Date | 19 March 1880 |
| Citation | 4 N.W. 908,53 Iowa 214 |
| Parties | THE STATE v. THOMAS |
| Court | Iowa Supreme Court |
Appeal from Floyd District Court.
THE indictment in this case contains two counts. In the first the defendant is charged with having committed rape upon one Electa Thomas; in the second he is charged with having had carnal knowledge of one Electa Thomas, his daughter, and it is stated that the matters and things charged in the second count are the same transaction charged in the first count.
The defendant demurred to the indictment on the ground that it charges two distinct offenses, rape and incest, and is accordingly, bad for duplicity. The court overruled the demurrer and the defendant was found guilty upon both counts. Upon the first count the court, upon motion, set aside the verdict. Upon the verdict upon the second count the court rendered judgment. The defendant appeals.
REVERSED.
J. S Root and F. M. Goodykoontz, for appellants.
J. F McJunkin, Attorney General, for the State.
OPINION
Section 4030 of the Code provides that, "if any persons within the prohibited degrees * * * * carnally know each other, they shall be deemed guilty of incest. " The second count of the indictment, which is the count in question, does not charge that the defendant and Electa Thomas carnally knew each other. It merely charges that the defendant had carnal knowledge of Electa Thomas, his daughter. It was assumed, however, by counsel and by the court below that the count was sufficient to charge incest, and it is that alone of which the defendant stands convicted. The question argued by counsel and presented for our decision is as to whether rape and incest are necessarily distinct offenses, or whether they may, if the parties are related within the prohibited degrees, as in this case, be a compound offense. The theory of the counsel for the State is, that if a man has carnal knowledge of a woman related to him within the prohibited degrees he is necessarily guilty of incest, and, if he has carnal knowledge of her by force, he is also guilty of rape, so that the crime of rape, committed by one person upon another related within the prohibited degrees, necessarily includes incest, and that the guilty person may be charged with both in the same indictment and convicted of the latter if not the former.
Consent, of course, excludes rape. Whether force and want of consent exclude incest, must be determined by the construction which should be put upon the section of the Code above cited. In construing that section it is to be observed that to constitute the crime of incest the parties must have carnal knowledge of each other. It is not sufficient that the man should have carnal knowledge of the woman, unless it follows that in such case she would necessarily have carnal knowledge of him. We come, then, to the question as to whether it can be said that a woman who is ravished has carnal knowledge of the man, within the meaning of the statute. In our opinion it cannot. The very use of the word knowledge indicates that the connection is to be deemed one of the mind as well as the body. It is further to be observed that the statute seems to imply that a person is not to be deemed singly guilty of incest. The language is: "They shall be deemed guilty of incest." Possibly if the connection should be accomplished by fraud, the party perpetrating the fraud might be deemed guilty of incest. The innocent party, of course, could not be. Again, it is easy to see that rape and incest have each a distinct element of criminality. The use of force is criminal, but this criminality is essentially different from this corruption of the mind of the other party where force is wanting.
As favoring the construction contended for by the counsel for the State, the case of Commonwealth v. Goodhue, 2 Met. 193, is cited. In that case it was held that the defendant might be convicted of incest notwithstanding the illicit connection might have been accomplished by force. The same was held in People v. Rowle, 2 Mich. nisi prius Reports 209. The latter decision was made under a statute similar to ours, but it is not entitled to much weight as an authority.
In People v. Harriden, 1 Parker's Crim. R. (N.Y.) 344, it was held under a statute similar to ours that where this illicit connection is accomplished by force the defendant cannot be convicted of incest, but only of rape. See also, De Groat v. People, 39 Mich. 124. In Noble v. State, 22 Ohio St. 541, the court assumed, and stated by way of argument, that the crime of incest can be committed only by two willing parties. Deeming this to be the correct view, it follows that in our opinion rape and incest are necessarily distinct offenses and should not be charged in the same indictment.
REVERSED.
BECK J., dissenting. Code, § 4300, is in the following language:
"The indictment must charge but one offense, but it may be charged in different forms to meet the testimony, and if it may have been committed in different modes and by different means, the indictment may allege the modes and means in the alternative; provided, that in case of compound offenses, where, in the same transaction, more than one offense has been committed, the indictment may charge the several offenses, and the defendant may be convicted of any offense included therein; provided further, that this section shall in no manner affect any provision of this Code providing for the suppression of intemperance."
This statute provides that if the criminal acts of which defendant is charged constitute more than one distinct offense they may be separately charged in the same indictment. It is apparent that the distinct offenses contemplated cannot be limited by the same attending circumstances. The act which constitutes the crime--the leaven which taints with criminality all the acts connected with the offense, is identical in such offenses, while the accompanying acts constituting the distinct offenses are different. The act which is the leaven of the offense is not the foundation of its designation; this is based upon attending circumstances or other acts which, in themselves, may or may not be criminal. Thus, in homicides, the leaven of the offense is the unlawful killing, the ingredient of deliberation and premeditation is the base of the designation of murder in the first degree, and other attending circumstances in the unlawful killing of a human being support the designation of manslaughter. The felonious taking and carrying away of goods constitutes the crime of larceny. But the circumstances under which the offense is committed give it various designations, as larceny from the person, larceny in the night from a dwelling, etc., etc.
It will be observed that all crimes of the same character, or class, rest upon one common act which may be appropriately called the leaven of the offenses, as it taints with guilt and unites in crime all the attending acts. Distinct crimes of the same class resting upon the same criminal act, under the statute cited above, may be charged in the same indictment. By considering a part of the attending circumstances the crime will take one designation; by regarding others, another must be applied to it, while the very act which constitutes the crime is the same in both. The statute quoted calls these compound offenses.
In incest and rape the criminal act--the leaven of the offenses--is unlawful carnal knowledge of a woman. If it be done by force it is rape; if the woman is within the prohibited degrees of consanguinity or affinity, it is incest. But suppose the act be accompanied both by force and the circumstance of the consanguinity or affinity of the woman, if we leave out of view the force, it is incest; or if we do not consider the relationship of the parties, it is rape. Considering all the attending circumstances, it is a compound offense consisting of both rape and incest, and, under the statute cited above, these several offenses may be charged in the same indictment. I conclude that the indictment in this case, one count charging rape and the other incest, was good, and that defendant was properly sentenced for incest upon the verdict on the second count. It follows if the indictment was good the conviction must stand. The jury, in finding the defendant guilty on the count for incest, did not find force, for it was not an ingredient of the offense of which they convicted defendant on that count. But they did find upon the first count that defendant accomplished the act by force. The verdict on that count the court below set aside. We have nothing to do with it. We cannot say because the jury convicted on the first count, therefore the ingredient of force is in the case. If the verdict had been permitted to stand, we would be precluded by it, but as it was set aside, the case stands as though such verdict had not been found. This view brings me to the conclusion that the judgment of the court below is correct and ought to stand.
II. The opinion of the majority of the court is based upon the doctrine that because the carnal knowledge was had by force and without the consent of the woman, the crime cannot be incest. To repeat the thought I have just advanced, which may be done quite forcibly just here--how do my brothers know that the guilty act was accomplished by...
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