State v. Thomas

4 N.W. 908, 53 Iowa 214

• Court: Supreme Court of Iowa
• Decided: March 19, 1880
• Status: Published

Opinions

Adams, Ch. J.

i. cBiimiAi, pound offense: rape and incest. Section 4030 of the Code provides that, “ if any persons within, the prohibited degrees * * * * carnally know each other, they Shall be deemed guilty of incest.” The second count of the in- ** , . , . .. dictment, wmcli is the count m question, does not charge that the defendant and Electa Thomas carnally knew each other. It merely charges that the defendant had carnal knowledge of Electa Thomas, his daughter. It was assumed, however, by counsel and by the court below that the count was sufficient to charge incest, and it is that alone of which the defendant stands convicted. The- question argued by counsel and presented for our decision is as to whether rape and incest are necessarily distinct offenses, or whether they may, if the parties are related within the prohibited degrees, as in this case, be a compound offense. The theory of the counsel for the State is, that if a man has carnal knowledge of a' woman related to him within the prohibited degrees he is necessarily guilty of incest, and, if he has carnal knowledge of her by force, he is also guilty of rape, so that the crime of rape, committed by one person upon another related within the prohibited degrees, necessarily includes incest, and that the guilty person may be charged with both in the same indictment and convicted of the latter if not the former.

Consent, of course, excludes rape. Whether force and want of consent exclude incest, must be determined by the construction which should be put upon the section of tbe Code above cited. In construing that section it is to be observed that to'constitute the crime of incest the parties must have carnal knowledge of each other. It is not sufficient that the man should have carnal knowledge of the woman, unless it follows that in such case she would necessarily have carnal knowledge of him. We come, then, to the question as to whether it can be said that a woman who is ravished has carnal knowledge of the man, within the meaning of the statute. In our opinion it cannot. The very use of the word knowledge indicates that the connection is to be deemed one of the mind as well as the body. It is further to be observed that the statute seems to imply that a person is not to be deemed singly guilty of incest. The language is: “ They shall be deemed guilty of incest.” Possibly if the connection should be accomplished by fraud, the party perpetrating the fraud might be deemed guilty of incest. The innocent party, of course, could not be. Again, it is easy to see that rape and incest have each a distinct element of criminality. The use of force is criminal, but this criminality is essentially different from this corruption of the mind of the other party where force is wanting.

As favoring the construction contended for by the counsel for the State, the case of Commonwealth v. Goodhue, 2 Met., 193, is cited. In that case it was held that the defendant might be convicted of incest notwithstanding the illicit connection might have been accomplished by force. The same was held in People v. Rowle, 2 Mich., nisiprms, Reports, 209. The latter decision was made under a statute similar to ours, but it is not entitled to much weight as an authority.

In People v. Harriden, 1 Parker’s Crim. R. (N. Y.), 344, it was held under a statute similar to ours that where tin's illicit connection is accomplished by force the defendant' cannot be convicted of incest, but only of rape. See also, De Groat v. People, 37 Mich., 124. In Noble v. State, 22 Ohio State, the court assumed, and stated by way of argument, that the crime of incest can be committed only by two willing parties. Deeming this to be the correct view, it follows that in our opinion rape and incest are necessarily distinct offenses and should not be charged in the same indictment.

Eeversed.