State v. Tucker

• Decision Date: 29 November 1910
• Docket Number: 21,633
• Citation: 93 N.E. 3,174 Ind. 715
• Parties: The State of Indiana v. Tucker
• Court: Indiana Supreme Court

93 N.E. 3

174 Ind. 715

The State of Indiana v. Tucker

No. 21,633

Supreme Court of Indiana

November 29, 1910

From Crawford Circuit Court; C. W. Cook, Judge.

Prosecution by The State of Indiana against James H. Tucker. From a judgment for defendant, the State appeals.

Affirmed.

James Bingham, Attorney-General A. G. Cavins, E. M. White and W. H Thompson, for the State.

John H Luckett and W. T. Zenor, for appellee.

OPINION

Montgomery, J.

Appellee was charged with the crime of incest, in having had sexual intercourse with his niece, knowing her to be such. He filed a special answer averring that his alleged niece was not related to him by consanguinity, but was the daughter of his wife's sister, both of whom were living. The State's demurrer to this answer was overruled, and, electing to stand upon such demurrer, the accused was discharged, and the State appealed and has assigned this ruling as error.

The propriety of the practice adopted to present the legal question involved has not been challenged, and we shall assume that the matter is properly before us for decision.

The relevant parts of the statute upon which this prosecution was based are as follows: * * * " If any uncle or aunt shall have sexual intercourse with his or her niece, or nephew having knowledge of his or her relationship, or if any nephew or niece shall have sexual intercourse with his or her aunt or uncle, such nephew or niece being over the age of sixteen years and having knowledge of his or her relationship, he or she shall be guilty of incest, and, on conviction, shall be imprisoned in the State prison not less than two nor more than twenty-one years, or may be imprisoned in the county jail not less than six months nor more than one year." Acts 1907 p. 101, § 2352 Burns 1908. The precise question for determination is whether sexual intercourse between an uncle and niece, related only by affinity, is incestuous within the meaning of this statute.

Incest is broadly defined as "sexual intercourse between persons so nearly related that marriage between them would be unlawful." Standard Dict.

Marriage between persons nearly related is prohibited in every Christian country, and incest has been forbidden, to some extent, by general custom from the earliest times, and by peoples very little advanced in civilization. It is generally agreed that a marriage between persons in the direct lineal line of consanguinity, and also between brother and sister, are unlawful as against the law of nature, independent of any church canon or statutory prohibition. This inflexible rule arises from the institution of the family, the basis of civilized society, and, the rights, duties, habits and affections flowing from that relation. Family intermarriages and domestic licentiousness would inevitably confuse parental and filial duties and affections, and corrupt the moral sentiments of mankind. Christian nations generally, going beyond the family circle, and following with greater or less accuracy the Levitical law, have, by specific enactment, prohibited marriages between more remote collateral kindred related either by blood or marriage. Incestuous marriages or relations were not formerly punished criminally in England, but such marriages were subject to dissolution and annulment. Incest was not a crime at common law, but was within the cognizance of, and punishable by the ecclesiastical courts. 1 Blackstone's Comm. 434; Bolen v. People (1900), 184 Ill. 338, 56 N.E. 408; State v. Smith (1878), 30 La. Ann. 846; State v. Slaughter (1879), 70 Mo. 484; State v. Keesler (1878), 78 N.C. 469; State v. Jarvis (1891), 20 Ore. 437, 26 P. 302, 23 Am. St. 141; Tuberville v. State (1849), 4 Tex. 128.

In this State, "marriage is declared to be a civil contract, into which males of the age of eighteen and females of the age of sixteen, not nearer of kin than second cousins, and not having a husband or a wife living, are capable of entering." § 8357 Burns 1908, § 5324 R. S. 1881.

Cousins are kindred, related collaterally by descent from a common ancestor--but not a brother or sister. The kin mentioned in this statute are related by the tie of consanguinity, and that is the primary and ordinary meaning of the word. In Supreme Council, etc., v. Bennett (1890), 47 N.J. Eq. 39, 43, 19 A. 785, the court said: "The phrases 'related to,' 'relations,' and 'next of kin,' whether used in a statute, will or contract, have, by a perfectly uniform course of decision, been held to include only relations by blood, and not connections by marriage, not even a husband or a wife. Bacon, Ben. Soc. § 260a; 2 Williams, Executors (6th Am. ed.) 1118 bottom; Esty v. Clark [1869], 101 Mass. 36; Kimball v. Story [1871], 108 Mass. 382." Disabilities to marriage have been divided into two classes, canonical and civil, but the only disabilities existing in this country are civil. The marriage of a man to the daughter of his deceased wife's sister would not be unlawful under the provisions of our statute, relating to marriage, heretofore quoted. But in England, such a marriage was held to be within the Levitical degrees, and in violation of the canon law. Ellerton v. Gastrell (1720), 1 Comyns 318. A table of kindred and persons related by affinity, who by Scripture and the laws of England could not intermarry, was published by authority in 1563, and this table was adopted in 1603 as the ninety-ninth canon by a convocation acting in pursuance of license under the great seal to agree upon such canons as they approved. This table declared the marriage of a man to the daughter of his wife's sister incestuous and unlawful. Shelford, Marriage and Div. p. 147, note h. The letter of the Levitical law did not prohibit such marriages, but they were held by the ecclesiastical courts to come within its spirit, since marital intercourse between blood kindred, related in the same degree, was therein forbidden. In the more...