People v. Harriden

1 Park. Cr. 344

• Court: Court Of Oyer And Terminer New York
• Decided: May 15, 1852
• Status: Published

Opinion

The court decided that the acts and declarations of the defendant were competent evidence upon the question whether the defendant was the father of the witness, with whom it was alleged the offence was committed, but that it belonged to the jury to judge as to the weight due to the evidence; and that they must be satisfied by it the defendant was her father, or they would not be warranted in finding him guilty. See 2 R. S. 139, orig. §3, declaring marriages between such relations as are therein named incestuous and' absolutely void, and that the section “ shall extend to illegitimate as well as legitimate children and relations,” also Regina v. St. Giles in the Fields, 11 Adolphus & Ellis, N. S. 173, 191, 203, 244; 2 Kent’s Com. 4th ed. 214. But if proof of marriage between the defendant and his reputed wife was necessary, whether under our law allowing marriage to be contracted by a present agreement between parties without any formal ceremony the rule which has prevailed in prosecution for bigamy, and a few other cases, requiring direct evidence of the marriage ought to be extended or longer adhered to. (See Clayton v. Wardell, 4 Comstock, 230 and opinions there given.)

(a)

In respect to the other point raised, the court decided that the statute, upon which the indictment was founded, applied only to cases where the connection was by mutual consent; and that if the connections between the defendant and his daughter were accomplished by force used by the defendant, to such an extent as to render him guilty of rape, the charge of incest was not sustained. That the offence of rape was of a higher nature, for the punishment of which ample provision had been made; and that the statute in relation to the punishment of the incest was designed to embrace only cases of sexual intercourse between relations within the degrees referred to in it, not coming within the statute in respect to the crime of rape.

The jury rendered a verdict of guilty.

See The People v. Gahagan, infra.