Whidby v. State

• Citation: 121 Ga. 688,49 S.E. 811
• Parties: WHIDBY v. STATE.
• Decision Date: 26 January 1905
• Court: Supreme Court of Georgia

49 S.E. 811

121 Ga. 688

WHIDBY

v.STATE.

Supreme Court of Georgia.

Jan. 26, 1905.

INCEST—ACCOMPLICE—INSTRUCTIONS— COERCION—EVIDENCE.

1. A woman who consents to an act of sexual intercourse which is incestuous is an accomplice of the man. This rule is not varied where some coercion is used by the man, but not of a character to make the case one of rape.

2. Accordingly, on the trial of one indicted for incestuous adultery, it was error to charge as follows: "If you should find that the will of the party was coerced to that extent where she did not consent, if it did not amount to sufficient force to make it rape, then it is for you to say whether or not she was an accomplice." This charge is also confusing in its tendency, for, if the will of the woman was "coerced to that extent where she did not consent, " the case is necessarily one of rape.

3. It is also error, on the trial of such a case, to admit evidence that the accused had frequently administered to the daughter with whom he is charged to have committed incestuous adultery severe whippings with a cowhide, there being nothing in the evidence to connect these whippings with the offense for which the accused is being tried, and their natural tendency being to prejudice the jury against him.

(Syllabus by the Court.)

Error from Superior Court, Irwin County;

D. M. Roberts, Judge.

J. E. Whidby was convicted of incestuous adultery, and brings error. Reversed.

Z. Bass, J. H. Martin, and Warren Grice, for plaintiff in error.

J. F. De Lacy and E. D. Graham, Sols. Gen., for the State.

CANDLER, J. The accused was tried upon an indictment charging him with incestuous adultery with his daughter, and was convicted. He moved for a new trial, which was refused, and he excepted.

1. 2. An act of sexual intercourse must necessarily be either with or without the consent of the female. If it is accomplished forcibly, and without her consent, the act is rape. If it be with her consent, even though some coercion be used to procure that consent, and the intercourse is illegal, the crime is adultery or fornication, as the case may be. Mathews v. State, 101 Ga. 547, 29 S. E. 424; Taylor v. State, 110 Ga. 151, 35 S. E. 161 (6). If the latter, and it is incestuous in character, the woman is an accomplice J of the man. Solomon v. State, 113 Ga. 192, 38 S. E. 332; Yother v. State, 120 Ga. 204, 47 S. E. 555. The law recognizes no intermediate degree of force in the accomplishment of an illegal act of sexual intercourse which is...