Mercer v. State

Willson, Judge.

I. This being a conviction for the crime of ineest, it is contended that if the evidence shows that the defendant was guilty in the same transaction of the higher and distinct crime of rape, it is an illegal conviction and must be set aside. It is ingeniously and ably argued by counsel for defendant that our statute defining the offense of incest, in using the words “ carnally know each other,” presupposes the consent of both parties, and makes it necessary that they should mutually carnally know each other; that the offense will not be complete where the man only acts voluntarily in the illicit connection; but, to make the offense complete, both the man and the woman must have the carnal knowledge with each other mentally as well as bodily; that a rape of the woman by the man excludes the crime of incest, and that, eo conversa, where incest is, rape cannot be. Counsel supports his reasoning by respectable authority. (People v. Harrison, 1 Parker’s Cr. Rep. (N. Y.), 344; Noble v. The State, 22 Ohio, 43; Northwestern Reporter, April 3, 1880, p. 442.)

But, in our opinion, the great weight of reason and of authority is against the doctrine announced in the authorities cited and contended for by counsel for defendant. Hr. Bishop says, in treating of this class of offenses: “ As every offense to be punishable must be voluntary, so in particular must be adultery. But alike in adultery and, it is believed, in fornication and in incest, where the crime consists in one’s unlawful carnal knowledge of another, it is immaterial whether the other participated under circumstances to incur guilt or not,— just as sodomy may be committed either with a responsible human being, or an irresponsible one, or a beast. Therefore, the same act of penetrating a woman who, for example, is too drunk to give consent, may be prosecuted either as a rape or as .adultery, at the election of the prosecuting power. There are cases which deny this, and hold that adultery, fornication and incest can ■be committed only with consenting persons, and what is rape cannot be one of the others. But they are believed to proceed partly, .and perhaps entirely, on special terms of statutes; certainly, in principle, they can have no other just foundation.” (Bish. on Stat. 'Crimes, § 660.)

In the case of The People v. Rouse, 2 Mich. N. P., 209, it was lield upon a trial for incest, where the proof tended to show that the intercourse was forcible and against the will of the female,— the complaining witness,— with whom the intercourse was had, that the accused might be convicted for incest even if the jury should find that the force used was such as, under the circumstances, to amount to rape. In Raiford v. The State, 68 Ga., 672, it was held that, in the perpetration of the crime of incest, there may be a certain force or power exerted, resulting from the age, relationship, or circumstances of the parties, which nevertheless may not amount to the violence necessary to constitute rape. In Alonso v. The State, 15 Texas Ct. App., 378, the question now before us was discussed and the authorities reviewed at some length, the conclusion arrived at and .announced being adverse to the view contended for by defendant’s counsel in this case. If our view of the law as enunciated in the last cited case be correct, and we believe it is, then that case is decisive of the question we have been discussing, and accordingly we hold that, notwithstanding the evidence in this case may show that the defendant committed rape upon his daughter, he may be prosecuted and convicted for incest; and that, to make him guilty of incest, it was not necessary that his daughter should have consented to his carnal knowledge of her. She might be entirely innocent of .any crime, and yet he might be guilty of rape or incest, or both, by bavins: carnal knowledge of her. We can see nothinsr in our statute defining the crimes of rape and of incest which militates against this view.

II. It was entirely upon the testimony of the defendant’s daughter, with whom the incestuous intercourse is alleged to have occurred, that this conviction was obtained. It is contended by defendant’s counsel that she was an accomplice in the offense, and that her testimony being uncorroborated in the manner required by law, the conviction is not sustained by sufficient evidence. If the witness, knowingly, voluntarily, and with the same intent which actuated the defendant, united with him in the commission of the crime charged against him, she was an accomplice, and her uncorroborated testimony cannot support the conviction. (Whart. Or. Ev., § 440; Freeman v. The State, 11 Texas Ct. App., 92.) But if, in the commission of the incestuous act, she was the victim of force, threats, fraud or undue influence, so that she did not act voluntarily, and did not join in the commission of the act with the same intent which actuated the defendant, then she would not be an accomplice, and a conviction would stand even upon her uncorroborated testimony. (Watson v. The State, 9 Texas Ct. App., 237; Whart. Cr. Ev., § 440.) In his charge to the jury the learned judge very fully and correctly instructed them upon the subject of accomplice testimony, and the issue as to whether or not the prosecuting witness was an accomplice was clearly and correctly submitted for their determination. We think the charge of the court in all respects was full, fair and correct, and there was no error committed in refusing the several special instructions requested by the defendant.

TTT. By far the most embarrassing question to us, which is presented in this case for our determination, is the sufficiency of the evidence to sustain, the conviction. If the prosecuting witness was not an accomplice, then the evidence is unquestionably sufficient. If, on the other hand, she was an accomplice, her testimony, if not corroborated to the extent required by law, is insufficient. The first inquiry, therefore, is, does the evidence warrant the conclusion that she was not an accomplice? She, herself, testifies very positively that she did not consent to the incestuous acts of her father; that she submitted to them through fear of him, under the influence of threats, etc. But these general statements of want of consent, force, threats, etc., must be considered in connection with her other testimony, and with all the other evidence in the case. According to her own testimony, her father, the defendant, first forced her to submit to his unnatural desire when she was thirteen years old, and he continued to have sexual intercourse with her from that time until she was twenty years old, about once each week when he was at home, and that the last time he had such intercourse with her he impregnated her with child. During all this time she lived at home with her father, mother, [sisters and brother. She was a stout, healthy girl, and at the time of testifying was a married woman and a mother. She never at any time made complaint to her mother, sisters, or to any one else of the defendant’s unnatural treatment of her. It was not until she was about four and a half months advanced in pregnancy that she revealed the guilt of her father, and imputed to him the paternity of the child. She continued to reside at her father’s, and even resided there with her husband after she married, and continued to reside there up to the time of the trial of this case. The last sexual intercourse which her father had with her was June 30, 1881. Her child was born March 30, "1882. She married July 26, 1883. Ho prosecution upon this charge was begun until March, 1884. The last sexual intercourse on June 30, 1881, she says, occurred about dark at the cow pen, where she had gone to milk the cows. The cow pen was about fifty yards from and in sight of the house, where her mother, sister and brother were at the time. She made no outcry and no resistance. To our minds her testimony, taken altogether, and in connection with the other evidence in the case, is inconsistent with the conclusion that she was not an accomplice in the commission of the offense. That this long continued incestuous intercourse, repeated almost weekly for a period of seven years, almost in- the very presence of the other members of the family, could have occurred without the consent of the witness, is to our minds unnatural, unreasonable and incredible. We cannot believe it, and we do not think the jury could have grounded their verdict upon that belief.

Holding then, as we do, that she was an accomplice, our next inquiry is, is her testimony sufficiently corroborated by the other evidence in the case to warrant the verdict of the jury? Whilst the corroboration is by no means as satisfactory to our minds as we would like it to be before affirming the conviction, still we think it is legally sufficient, and, the jury being the exclusive judges of the "weight of the evidence and the credibility of the witnesses, we "would not feel justified in disturbing their verdict. The most material, and to our minds the only sufficient, corroboration of her testimony is that of her sister, Mrs. Loftis. The prosecuting witness testified that when she discovered she was pregnant she told her mother about it, and her mother told the defendant that witness was pregnant and that he was the father of the child, that he acknowledged he was guilty, and got his gun and said he would blow his brains out, and said to the prosecuting witness that she ought to be willing to go to the grave with him. Mrs. Loftis testified that she remembered the time when her father got his gun and said he was going to kill himself, and said to her sister she ought to be willing to go to the grave with him, but that she did not hear their conversation and did not know what they were talking about. This evidence, we think, tends to connect the defendant with the offense, and fills the measure of the law. Besides this, there is some other corroborating evidence, but of so weak and uncertain a character as to be insufficient, of itself, to uphold the testimonjr of the accomplice witness.

IV. We do not think the remarks of the prosecuting attorney, in his closing argument to the jury, which are complained of by the defendant, were beyond the scope of legitimate argument. It was disclosed by the evidence that the defendant’s wife must have known important facts bearing directly upon the issue in the case, and that she was within easy reach of the process of the court. She could have explained fully the occurrence testified about by his two daughters when he got his gun and said he would blow his brains out. She could have testified, perhaps, to many other facts which would have shed light upon this horrible transaction. It was not within the power of the prosecution to adduce her testimony; because, being the defendant’s wife, she was not permitted under the law to testify against him in this case. He alone could call for her testimony, and compel its production. Her knowledge of the facts, whatever that knowledge might be, was at his command — was within his reach,— and without he produced it, or consented to its production, it was a sealed book, which no human tribunal had the power to open against him. Under these circumstances we think the prosecuting attorney was justified in the remarks complained of, and that the court did not err in its action in relation thereto.

We have found no error in the record which in our opinion demands, or would justify us in setting aside the conviction, and the judgment is therefore affirmed.

Affirmed.

[Opinion delivered January 31, 1885.]