The State v. Bartley

• Decision Date: 05 June 1924
• Docket Number: 25351
• Citation: 263 S.W. 95,304 Mo. 58
• Parties: THE STATE v. JOSEPH BARTLEY, Plaintiff in Error
• Court: Missouri Supreme Court

263 S.W. 95

304 Mo. 58

THE STATE v. JOSEPH BARTLEY, Plaintiff in Error

No. 25351

Supreme Court of Missouri

June 5, 1924

Transferred from Kansas City Court of Appeals.

Judgment of Circuit Court reversed.

N T. Cave and Emil P. Rosenberger for plaintiff in error.

(1) That portion of the majority opinion holding in substance that "the fact that the evidence shows that defendant was only the half-uncle of the girl, being the half-brother of her mother, does not render the evidence broader than the information, nor does it constitute a failure to prove that there was no imputation of incest against the girl by the slanderous words, and that half-uncles and half-nieces are included within the class named who shall be adjudged guilty of incest, as provided by Section 3511, Revised Statutes 1919," is in direct conflict with, and is opposed to the following decisions of this court, to-wit: State v Jaeger, 63 Mo. 403; State v. Gritzner, 134 Mo. 512; State v. Butler, 178 Mo. 272; State v. Balch, 178 Mo. 392; State v. McCance, 110 Mo. 398; State v. Reid, 125 Mo. 43; State v. Koock, 202 Mo. 223; State v. McMahon, 234 Mo. 611; State ex rel. Collins v. Railroad Co., 238 Mo. 605; State v. Owens, 268 Mo. 481. (2) Criminal statutes must be strictly construed; they must be not only strictly construed, but cannot be extended or enlarged by judicial construction so as to embrace offenses and persons not plainly within their terms; a criminal statute should be strictly construed against the State and in favor of innocence and liberty; where a statute defines an offense and designates one class of persons as subject to its penalties, all other persons are deemed to be exonerated and no one is to be made subject thereto by implication.

Jesse W. Barrett, Attorney-General; J. Henry Caruthers, Assistant Attorney-General, and W. B. Whitlow, Prosecuting Attorney, for defendant in error.

(1) The majority opinion is correct and follows the adjudicated cases on the subject of incest in relation to half-uncles and half-nieces. Secs. 3511, 3612, R. S. 1919; State v. Reedy, 44 Kan. 193; State v. Wyman, 59 Vt. 529.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

Joseph Bartley was convicted in the Circuit Court of Callaway County of falsely and maliciously accusing a female of incest. On a writ of error, the Kansas City Court of Appeals affirmed the conviction. Judge Bland deeming the opinion of the court to be in conflict with certain previous decisions of the Supreme Court, the case was certified and transferred to this court.

The amended information, based on Section 3612, Revised Statutes 1919, charges that Bartley falsely and maliciously imputed to Grace A. T the crime of incest, by falsely and maliciously speaking to Ed. Love certain words by which he meant and was understood to mean that he, Bartley, had had sexual intercourse with said Grace A. T , the said Grace A. T being the niece of the said Joseph Bartley. A trial was had, resulting in a verdict of guilty and assessing the defendant's punishment at a fine of $ 400.

Bartley is a half-brother of the mother of Grace A. T ?$ . They are, therefore, uncle and niece of the half blood. Section 3511, Revised Statutes 1919, defining incest, reads:

"Persons within the following degrees of consanguinity, to-wit: Parents and children, including grandparents and grandchildren of every degree, brothers and sisters of the half as well as of the whole blood, uncles and nieces, aunts and nephews, who shall intermarry, or who shall commit adultery or fornication with each other, or who shall lewdly and lasciviously cohabit with each other, shall be adjudged guilty of incest, and be punished by imprisonment in the penitentiary not exceeding seven years."

Section 7299, Revised Statutes 1919, prohibiting marriage between certain relatives, reads:

"All marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as of the whole blood, and between uncles and nieces, aunts and nephews, first cousins, white persons and negroes, white persons and Mongolians, are prohibited and declared absolutely void, and this prohibition shall apply to illegitimate as well as legitimate children and relatives."

Falsely and maliciously to accuse any female of incest is a misdemeanor. [Sec. 3612, R. S. 1919.]

The majority opinion of the Court of Appeals holds that the words "uncles and nieces," as used in the statute (Sec. 3511, supra), includes uncles and nieces of the half as well as of the whole blood. The opinion cites State v. Reedy, 44 Kan. 190, where the court, at page 192, said: "An uncle is defined to be the brother of a father or mother, and according to the common understanding, there is no distinction between the whole and the half blood." In support of this proposition, the opinion quotes 1 Bishop on Marriage and Divorce, sec. 317 (Sec. 748, Ed. 1891): "The relationship by half blood is the same in these cases as by whole blood; so that, for example, it is incest for a man to marry the daughter of his brother of the half blood, or the daughter of his half-sister." The learned author, as will be seen by the context, was treating of the English ecclesiastical law (32 Hen. 8 c. 38), which declared lawful the marriage of all persons "not prohibited by God's law to marry." [Ib. sec. 737.] It prohibits marriages between persons related by blood or marriage within the Levitical degrees. [Lev. ch. 18.] "Under the statute it is incestuous for a man to marry his deceased wife's sister, or for a woman to marry her deceased husband's brother." [Sec. 747.] In another work he says: "At the time of the settlement of our country, incest, the same as common adultery and fornication, was punishable as an offense against the ecclesiastical laws, but it was not indictable in the common law courts. It is not, therefore, indictable under our common law." [Bishop on Statutory Crimes (3 Ed.) sec. 728.]

We must, therefore, look to the statute for the definition of incest. Are uncles and aunts of the half blood, as well as of the whole blood, within the prohibited degrees of relationship? Criminal statutes are to be construed strictly liberally in favor of the defendant and strictly against the State, both as to the charge and the proof. No one is to be made subject to such statutes by implication. Where one class of persons is...