State v. Wyman
| Decision Date | 15 April 1887 |
| Citation | 59 Vt. 527,8 A. 900 |
| Parties | STATE v. WYMAN. |
| Court | Vermont Supreme Court |
Exceptions from Windham county court, September term, 1886; Walker, J., presiding.
Indictment charging respondent with fornication with a daughter of his brother. Respondent demurred, because the indictment did not allege knowledge of the relationship. Demurrer overruled. Trial by jury. Verdict, guilty. Respondent then moved in arrest of judgment because the indictment was insufficient. Motion denied. The facts appear in the opinion.
Waterman & Martin, for respondent.
F. A. Bolles, for the State.
ROYCE, C. J. Two points only are urged in behalf of the respondent: First, that the indictment is fatally defective, in that it does not charge the respondent with knowledge of the relationship existing between himself and the particeps criminis at the time of the commission of the crime charged. The indictment is based upon R. L. § 4246, which provides that "persons between whom marriages are prohibited by section 2306 or section 2307 who intermarry, or who commit fornication with each other, shall be punished as in case of adultery." The indictment sufficiently charges that the respondent was related to the particeps within the degrees of consanguinity specified in sections 2306 and 2307, and that he committed fornication with her. Fornication is only made a crime when committed by persons within certain degrees of consanguinity. It is therefore a statutory crime purely, and its definition, and the proceedings to punish persons charged with it, are dependent upon the words of the statute itself. The statute is entirely silent as to any scienter. It does not say that a person who knowingly or willfully commits fornication with one related to him or her within the degrees of consanguinity which prohibit marriage, shall be punished, etc. To come within the statute, therefore, it was not necessary to allege knowledge of the relationship. Bish. St. Crimes, (2d Ed.) §§ 729, 732, 733.
Second, that the indictment is not sustained by proof that the respondent committed the offense with a daughter of his half-brother, it being claimed that the word "brother" in the statute is not broad enough to cover a brother of the half-blood. In support of this claim it is urged that at common law a brother of the half-blood is not a brother, and cannot inherit as such. It is true that by the common law a brother of the half-blood could not inherit, but this was a rule for the regulation of the...
To continue reading
Request your trial
-
Tapscott v. State
...and sisters within the prohibitions of an incest statute making no specific provisions for half-blood relationships); State v. Wyman, 59 Vt. 527, 8 A. 900 (1887) (applying incest statute equally to those of whole and half blood); see also State v. Allen, 304 N.W.2d 203, 207 (Iowa 1981); A.W......
-
People v. Baker
...v. Ashey, 248 Mass. 259, 142 N.E. 788; People v. Jenness, 5 Mich. 305; Shelly v. State, 95 Tenn. 152, 31 S.W. 492; State v. Wyman, 59 Vt. 527, 8 A. 900.) Either rationale is in apposite where the statute, as is true of Civil Code section 59, specifically deals with some half blood relations......
-
Mccaskill v. State
... ... allege such knowledge [55 Fla. 121] by the defendant ... State v. Pennignton, 41 W.Va. 599, 23 S.E. 918; ... State v. Dana, 59 Vt. 614, 10 A. 727; State v ... Bullinger, 54 Mo. 142; Simon v. State, 31 Tex ... Cr. R. 186, text 203, 20 S.W. 399, 716, 37 Am. St. Rep. 802; ... State v. Wyman, 59 Vt. 527, 8 A. 900, 59 Am. Rep ... The ... indictment alleges that the offense charged was against the ... form of the statute, and it is not essential to allege that ... the acts charged were unlawful, or unlawfully done, since ... that is not an element of the offense as defined ... ...
-
People v. Womack
...near relatives, whether by the half blood or the whole blood. State v. Lamb, 1929, 209 Iowa 132, 227 N.W. 830, 831; State v. Wyman, 1887, 59 Vt. 527, 8 A. 900; Simon v. State, 1892, 31 Tex.Cr.R. 186, 20 S.W. 399, 716; People v. Binger, 1919, 289 Ill. 582, 124 N.E. 583; Shelley v. State, 189......