prosecutrix is a competent witness as to the paternity of the child.13 Moreover, the statement of the prosecutrix herself that she continued to accuse the defendant during her travail has been held admissible.14 Evidence of the mother's previous unchastity is admissible, but it must be restricted to her credibility and to the question of the paternity of the child.15

§ 788. Presumption of legitimacy-Burden of proof.— The law presumes a child born in wedlock to be legitimate; but such presumption may be rebutted by facts and circumstances showing that the husband could not have been the father, as that he was impotent or could not have had access.16 Where access is either admitted or opportunity for it is reasonably certain from the evidence, the presumption of legitimacy will prevail, unless the jury are convinced that it was impossible for the husband to have been the father of the child. The presumption that a child born of a married woman is legitimate is not to be rebutted by circumstances which only create suspicion, but it may be wholly removed by evidence of incompetency.18 It has been held, however, that where the evidence shows that the plaintiff's mother was legally married to a man, and that there was opportunity for procreation within the period of gestation, a conclusive presumption is raised that the plaintiff is his legitimate son.19 On the other hand it has been held that the presumption of legitimacy may be overcome by sufficient evidence of incompetence, entire absence, absence during the

13 State v. Chambers, 37 S. Dak. 555, 159 N. W. 113.

14 Akeson v. Doidge, 225 Mass. 574, 114 N. E. 726.

15 State v. Chambers, 37 S. Dak. 555, 159 N. W. 113.

16 West v. Redmond, 171 N. Car. 742, 88 S. E. 341; State v. Woods,

102 Kans. 499, 170 Pac. 986, L. R. A. 1918 C, 889.

17 Wilson v. Wilson, 174 Ky. 771, 193 S. W. 7.

18 People v. Woodson, 29 Cal. App. 531, 156 Pac. 378; Craig v. Shea (Nebr.), 168 N. W. 135.

19 Vanover v. Steele, 173 Ky. 114, 190 S. W. 667.

period of begetting, or presence with proof of no sexual intercourse.20 Declarations of the wife that her child, born in lawful wedlock, is not the child of her husband are inadmissible.21 But where the mother is a feme sole, evidence is admissible which shows intercourse between her and other men about the time the child was conceived.22

20 In re Walker's Estate (Cal.), Car. 305, 93 S. E. 854. 168 Pac. 689.

21 Croom v. Whitehead, 174 N.

22 Samples v. State (Ala. App.), 74 So. 758.

CHAPTER LXIII

INCEST.

Section

790. Definition.

791. Elements of offense. 792. Incest and rape.

1

Section

793. Corroboration of evidence of

female.

794. Weight and sufficiency of evidence.

§ 790. Definition.—Incest is carnal connection between a man and woman lineally related to each other, or collaterally related in such a degree that marriage between them is prohibited by law. It is said that this, like adultery, was an offense punishable only by the ecclesiastical law, not by the common law.2 Since the degrees within which marriage is permitted are regulated by statute, and vary in different jurisdictions, it has been held necessary to show that the parties are not married, for if contracted out of the state, the marriage might be valid.3

The statutory relationship includes illegitimate kinship,

1 Taylor v. State, 110 Ga. 150, 35 S. E. 161; State v. Hertges, 55 Minn. 464, 57 N. W. 205; Dinkey v. Commonwealth, 17 Pa. St. 126, 55 Am. Dec. 542. See also Daniels v. People, 6 Mich. 381; note to 111 Am. St. 19-31.

24 Bl. Comm. 604. See also, State v. Smith, 30 La. Ann. 846; State v. Keesler, 78 N. Car. 469, 2 Am. Cr. 331.

3 State v. Fritts, 48 Ark. 66, 2 S.

W. 256. But see State v. Nakashima, 62 Wash. 686, 114 Pac. 894, Ann. Cas. 1912D, 220.

4 Baker v. State, 30 Ala. 521; Lipham v. State, 125 Ga. 52, 53 S. E. 817, 114 Am. St. 181, 5 Ann. Cas. 67; State v. Schaunhurst, 34 Iowa 547; Cecil v. Commonwealth, 140 Ky. 717, 131 S. W. 781, Ann. Cas. 1912B, 501; People v. Jenness, 5 Mich. 305; People v. Lake, 110 N. Y. 61, 17 N. E. 146, 6 Am. St. 344.

and kinship by the halfblood," or relationship by affinity, so as to make intercourse with a sister-in-law criminal. In other jurisdictions relationship by affinity is not included."

8

But a relationship dependent on marriage, exists only while the marriage endures, thus it is held there can not be incest with a step-daughter unless her mother is the living wife of the defendant, although other courts hold relationship by affinity continues so long as there are living issue of the marriage. Relation by marriage extends only to the spouse's blood relations, thus, one is not related by affinity to his wife's brother's wife.10

The reasons for punishing incest are said to be that proper propagation of the race demands parents of different families, and that the practice is contrary to natural feeling.11

§ 791. Elements of offense. It is as unnecessary to prove emission as in case of rape.12 It is usually held that mere proof of marriage is sufficient without showing carnal intercourse;13 and in no jurisdiction is more than one act of intercourse essential.14

It is usually held that the crime involves mutual consent, that both parties are guilty of the offense, and that both

11 Whart. Crim. L. (11th ed.), § 2096n.

12 State v. Judd, 132 Iowa 296, 109 N. W. 892, 11 Ann. Cas. 91. But see Noble v. State, 22 Ohio St. 541, later modified by statute.

13 State v. Schaunhurst, 34 Iowa 547; Simon v. State, 31 Tex. Cr. 186, 20 S. W. 399, 716, 37 Am. St. 802.

14 Barnhouse v. State, 31 Ohio St. 39; Hollingsworth v. State, 80 Tex. Cr. 299, 189 S. W. 488.

must be proved guilty to sustain the indictment, 15 although both need not be jointly indicted.16 If the statute is so worded, the prosecution must prove that the offense was committed, knowing the relationship.17 Consent of the woman is not a defense,18 nor the fact that she is a prostitute.19

§ 792. Incest and rape.-It is generally held that consent is necessary to incest, and that if force was used by the man, the act was rape, and there can be no conviction for incest.20 But there are other cases holding consent of both parties not necessary.21 And it is held that under an indictment for rape, where force was not shown, a conviction of incest may be sustained.22 If the woman be under age of consent, the offense is rape, not incest.23

§ 793. Corroboration of evidence of female.-By corroboration is meant evidence other than that of the prosecutrix which, in itself and without the aid of her evidence, tends

15 People v. Patterson, 102 Cal. 239, 36 Pac. 436; People v. Turner, 260 I11. 84, 102 N. E. 1036, Ann. Cas. 1914D, 144; Baumer v. State, 49 Ind. 544, 19 Am. Rep. 691, 1 Am. Cr. 354; State v. Thomas, 53 Iowa 214, 4 N. W. 908; Delany v. People, 10 Mich. 241; State v. Jarvis, 20 Ore. 437, 26 Pac. 302, 23 Am. St. 341. See also note to 21 Ann. Cas. 1257.

16 People v. Patterson, 102 Cal. 239, 36 Pac. 436; Yeoman v. State, 21 Nebr. 171, 31 N. W. 669.

17 Baumer v. State, 49 Ind. 544, 19 Am. Rep. 691, 1 Am. Cr. 354; State v. Rennick, 127 Iowa 294, 103 N. W. 159, 4 Ann. Cas. 568; Simon v. State, 31 Tex. Cr. 186, 20 S. W. 399, 716, 37 Am. St. 802.

18 Schoenfeldt v. State, 30 Tex. App. 695, 18 S. W. 640.

19 State v. Winningham, 124 Mo. 423, 27 S. W. 1107.

20 Raiford v. State, 68 Ga. 672; State v. Thomas, 53 Iowa 214, 4 N. W. 908; People v. Rouse, 2 Mich. N. P. 209; People v. Harriden, 1 Park. Cr. (N. Y.) 344; Noble v. State, 22 Ohio St. 541; State v. Winslow, 30 Utah 403, 85 Pac. 433, 8 Ann. Cas. 908.

21 People v. Barnes, 2 Idaho 161, 9 Pac. 532; State v. Nugent, 20 Wash. 522, 56 Pac. 25, 72 Am. St. 133.

22 Commonwealth v. Goodhue, 2 Metc. (Mass.) 193. See also State v. Rennick, 127 Iowa 294, 103 N. W. 159, 4 Ann. Cas. 568; People v. Rouse, 2 Mich. N. P. 209.

23 DeGroat v. People, 39 Mich.

124.