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II. INCEST.

fence at common

§ 1749. Incest, on the principles already stated in respect to adultery, is a common law offence in the United Is an ofStates; though, for the reason that the subject is generally absorbed by statute,2 no decision as to its law. common law character can be cited.3

Constit

uents of of

§ 1750. In Ohio, emissio seminis was once essential to constitute the offence; but this ruling was peculiar to that State, and by statute this is no longer essential. Elsewhere the mere fact of marriage is adequate to sustain the indictment, without proof of carnal knowledge.5

fence must

be made

out.

The lex fori is the arbiter of the question of relationship. The relation of step-father and step-daughter, under the Ohio statute has been ruled not to exist after the termination, by death or divorce, of the marriage relation between the step-father and the step-daughter's mother.7

May be

§ 1751. Under the Massachusetts statutes authorizing the conviction of a minor offence on an indictment for a major, a defendant may be convicted of incest on an indictment for rape, the indictment containing the proper diemer averments.8

conviction of an indictment for major offence.

§ 1752. The scienter, when required by statute, is necessary to the indictment. It is sufficient, however, with this, when re

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quired, to aver the relationship of the parties.1 It is not necesScienter is sary to aver or prove the marriage by which that rela

essental.

Relation

ship prov

tionship was created.2

§ 1753. The defendant's admission of relationship able by ad- with the person with whom he holds incestuous intercourse is sufficient proof of such relationship.3

mission.

statutory.

III. "MISCEGENATION."

§ 1754. The intermarriage of persons belonging to the black Offence is and white races was, until the late civil war, forbidden in most of the United States, and in several States the prohibition continues. Whether such statutes conflict with the recent amendments to the federal Constitution has been questioned. In Tennessee and Virginia the negative has been held.5

statute prescribe the scienter. State v. Bullinger, 54 Mo. 142. See Hicks v. People, 10 Mich. 395. And as to scienter generally see supra, § 1731; Whart. Cr. Pl. & Pr. § 164; Morgan v. State, 11 Ala. 289.

1 Williams v. State, 2 Ind. 439.

2 Noble v. State, 22 Oh. St. 541. See State v. Schaunhurst, 34 Iowa, 547; People v. Jenness, 5 Mich. 305. In Ohio the offence cannot be laid continuously. See Barnhouse v. State, 31 Oh. St. 39.

Bergen v. People, 17 Ill. 426. See Whart. Cr. Ev. §§ 623 et seq. 4 See Bishop on Mar. & Div. c. xvii.; Wh. Confl. of L. § 159.

5 Kinney's case, 30 Grat. 658; Lonas v. State, 3 Heisk. 287. In this case Sneed, J., said:

"Such, also, were the laws of the British colonies in this country, reenacted after the separation by the thirteen States. In Massachusetts, the Colonial Act of 1707, entitled An act for the better preventing of a spurious and mixed issue,' was reenacted under the state government in 1786, forbidding the intermarriage of the black and white races, and degrading the unhappy issue of such marriage

with the stain of bastardy. And long after the abolition of slavery in that State, in the carefully revised Code of 1836, this mark of degradation,' says Taney, C. J., 'was again impressed upon the race.' 19 How. 413. And such, indeed, we believe, was the law of every State. The Congress has the same right to regulate this relation in the District of Columbia and in the Territories, that the States have within their own jurisdictions; and this power is at this moment being exercised in Utah, in the suppression of polygamy. We are of opinion that the late amendments to the Constitution of the United States, and the laws enacted for their enforcement, do not interfere with the rights of the States, as enjoyed since the foundation of the government, to interdict improper marriages; and that the Act of 1870, c. 39, which forbids the intermarriage of white persons with negroes, mulattoes, or persons of mixed blood, descended from a negro to the third generation inclusive, and their living together as man and wife, in this State, is a valid and constitutional enactment."

CHAPTER XXXIV.

SEDUCTION.

Statutory requisites must be followed, §| Subsequent marriage a defence, § 1760. Ignorance no defence, § 1761.

1756.

Prior chaste character is essential to offence, Indictment must follow statute, § 1762. § 1757.

Promise of marriage must be proved, §

1758.

Consent no defence, § 1759.

Prosecutrix as a witness must be corroborated, § 1763.

May be conviction of minor offence, § 1764.

must be

§ 1756. THE statutes relating to seduction are so numerous and divergent that any attempt to draw from them a Statutory consistent and uniform definition of the offence would requisites be futile. We must content ourselves, therefore, with followed. a brief discussion of some of its chief statutory ingredients. "Abduction," it should be remembered, has been already discussed.1

Under some of the statutes, it is indictable to seduce or in veigle a girl from persons having charge of her. These are de

1 Supra, § 586. The California Penal Code, § 266, does not cover the technical offence of seduction. People v. Roderigas, 49 Cal. 9.

The Roman law made penal the seduction of widows as well as virgins. Stuprum, which it interdicted, included in its widest sense every turpitudo; in a narrower sense, every coitus illicitus; in a sense still more contracted, unchastity. Seduction of women of chastity was made highly penal. "Sed eadem lege Julia etiam strupri flagitium punitur, cum quis sine vi vel virginem vel viduam honeste viventem strupraverit. Poenam autem lex irrogat peccatoribus, si honesti sunt, publicationem partis di

midiae bonorum; si humiles, corporis coërcitionem cum relegatione." 4 Inst. de publ. jud. 4. 18. The canon law, in addition, in case of the seduction of a virgin by an unmarried man, required him to endow and marry her. C. i. x. de adult. 5. 16. At all events, there must be the endowment, if the marriage was refused. Hence the famous maxim, which worked its way into the ethics of subsequent generations, "Duc aut dota."

2 Sir J. Stephen thus recapitulates the decisions under the English statute (Dig. C. L. art. 263):

"(1.) A. and B., two girls under sixteen, run away from home together. Neither abducts the other. R. v.

fined to be persons in actual charge, as heads of the family with whom the girl resides, excluding, of course, special and temporary guardians, such as transient school-mistresses.1

Meadows, 1 Car. & Kir. 399, as explained by note to R. v. Kipps, 4 Cox C. C. 168; and R. v. Mankletow, Dears. C. C. 162.

"(2.) A. persuades B., a girl under sixteen, to leave her father's house, and sleep with him for three nights, and then sends her back. A. has abducted B. R. v. Timmins, Bell, 276.

“(3.) A., a lady, persuades B., a girl under sixteen, to leave her father's house, and come to A.'s house for a short time, for the purpose of going to the play with her. A. has not abducted B. Founded on a dictum of Compton, J., in R. v. Timmins.

“(4.) A., a girl under sixteen, asks B., by whom she had been seduced, to elope with her, which he does. B. commits abduction. R. v. Biswell, 2 Cox C. C. 259; and see R. v. Robins, 1 C. & K. 456.

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'(5.) A. induces B. to permit his daughter, C., to go away by falsely pretending that he (A.) will find a place for C. A. abducts C. R. v. Hopkins, Car. & Mar. 254.

"(6.) A. takes B., a girl under sixteen, out of her father's possession, believing her, upon good grounds, to be eighteen. A. has abducted B. R. v. Prince, L. R. 2 C. C. R. 154.

"(7.) A. meets B., a girl under sixteen, in the street, gets her to stay with him some hours, during which interval he seduces her, takes her back to the place where he found her, and there leaves her. She returns home. A. was not aware at the time that B. had a father or mother living. A. has not abducted B. R. v. Hibbert, L. R. 1 C. C. R. 184."

The following is condensed from Roscoe's Cr. Ev. pp. 262 et seq. :

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Even under the old statute of Hen. 7, which did not contain the words 'or detain,' detaining a person who originally came with her own consent, was considered to be within the statute. R. v. Brown, 1 Ventr. 243; Hawk. P. C. b. 1, c. 41, s. 7; 1 East P. C. 454; 1 Russ. by Greav. 703.

"In 24 & 25 Vict. c. 100, s. 55, which applies to girls under sixteen years of age, the words are, 'whosoever shall take or cause to be taken out of the possession and against the will of her father or mother,' &c. Here also any violation of the girl's will is unnecessary. Thus it is said, by Herbert, C. J., that the statute of 4 & 5 P. & M., which was to the same effect, was made to prevent children from being seduced from their parents or guardians by flattering or enticing words, promises, or gifts, and married in a secret way to their disparagement. Hicks v. Gore, 3 Mod. 84. So upon the same statute it was held that it is no excuse that the defendant, being related to the girl's father, and frequently invited to the house, made use of no other seduction than the common blandishments of a lover to induce the girl secretly to elope and marry him, if it appear that it was against the consent of the father. R. v. Twisleton, 1 Lev. 257; 1 Sid. 387; 2 Keb. 432; Hawk. P. C. b. 1, c. 41, s. 10; 1 Russ. by Greav. 712. If the same latitude of construction were applied to s. 53, which relates to women of any age, it might be rather dangerIt has been argued that though

ous.

1 R. v. Meadows, 1 C. & K. 399; State v. Ruhl, 8 Iowa, 447.

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Taking" includes receiving the girl, as she elopes not merely from her guardians' residence,' but from their constructive pos

by the statute a taking by force is not necessary, still that a person cannot in any sense be said to be taken who goes willingly, and that the word take in itself imports the use of some coercion. But this view has not been adopted; thus where A. went in the night to the house of B. and placed a ladder against the window, and held it for F., the daughter of B., to descend, which she did, and then eloped with A.; F. being a girl fifteen years old; this was held to be a 'taking' of F. out of the possession of her father within the statute, although F. had herself proposed to A. to bring the ladder and elope with him. R. v. Robins, 1 C. & K. 456. So in R. v. Mankletow, 1 Dears. C. C. R. 159; 22 L. J. M. C. 115, where the prisoner, intending to emigrate to America, had privately persuaded a girl between twelve and thirteen years of age to go with him, and on the morning of his departure had secretly told her to put up her things in a bundle and meet him at a certain spot, and she accordingly left her father's house and met the prisoner, and the two travelled up to London together; this was held to be a 'taking.' Jervis, C. J., in delivering judgment in this case, said: There can be no question upon the facts stated in this case, that when the prisoner met the girl at the appointed place, there was then a taking of her. The statute was framed for the protection of parents;' and see R. v. Booth, 12 Cox C. C. 231. In R. v. Handley, 1 F. & F. 648, Wightman, J., said, ‘a taking by force is not necessary; it is sufficient if such

1 R. v. Robb, 4 F. & F. 59; R. v. Robins, 1 C. & K. 456; R. v. Kipps, 4 Cox C. C. 167; R. v. Mankletow, 6 33

VOL. II.

moral force was used as to create a willingness on the girl's part to leave her father's home. If, however, the going away was entirely voluntary on the part of the girl, the prisoner would not be guilty of any offence under the statute.' See, too, R. v. Robb, 4 F. & F. 59.

"A man is not, it seems, bound to return a girl under sixteen to her father's custody, when she has left home without any inducement and came to him. If, however, he has ever held out any inducement to her to leave, and if, when she has left, he avails himself of her having left to induce her to continue out of her father's custody, this is within the statute, whatever his wishes may have been as to the particular time of her leaving. R. v. Olifier, 10 Cox C. C. 402.

"In R. v. Green, 3 F. & F. 274, the prisoners found the girl in the street by herself and invited her to go with them, giving her drink which made her dizzy. Green then had intercourse with her in an empty house, where he kept her with him all night. Martin, B., directed an acquittal, on the ground that the girl was not taken out of the possession of any one. It must, however, be observed, that in this case no evidence appears to have been given as to the purpose for which the girl had left home. In R. v. Olifier, 10 Cox C. C. 402, Bramwell, B., ruled that when a girl leaves her father of her own accord, without any inducement on the man's part, the man is not bound to restore her to her father. But it seems there must be no intention to return on her

Cox C. C. 143; Dears. C. C. 159, modifying R. v. Meadows, 1 C. & K. 399.

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