CHAPTER XIV. ILLICIT COHABITATION: INCEST. I. ILLICIT COHABITATION, § 2669. II. INCEST, § 2669 a. § 2669. Nature of offence. Statutes exist in many states. making specifically indictable illicit cohabitation. In some aspects (e. g. when the offence is a common scandal), such cohabitation is a nuisance, and may be indicted as such. a But there may be cases of "illicit cohabitation," or "living in adultery," which are not nuisances, and which distinctively fall within the range of the statutes now before us. In such cases the evidence necessary to support a prosecution must be something more than that of a single act of adultery or fornication. A deliberate continuance in a state of adultery or fornication, though only for a short time, must be shown. b Indictment. Of the indictments for this class of cases, it is only possible at present to observe, the statutes being so various, that in respect to them the ordinary rules in respect to statutory indictments must be maintained. c One distinctive feature may here be noticed, that a continuando, though proper, is not generally essential. d The question of joinder of defendants is the same as in adultery, and has been already noticed. e II. INCEST. § 2669 a. An offence at common law. - Incest, on the principles already stated in respect to adultery, is a common law offence in a See ante, § 2391. b Com. v. Calef, 10 Mass. 153; State v. Moore, 1 Swan, 136; State v. Glaze, 9 Alab. 283; Smith v. State, 39 Alab. 554; McLeland v. State, 25 Ga. 477; Searle v. People, 13 Illinois, 597; State v. Gartrell, 14 Ind. 280; State v. Marvin, 12 Iowa, 499. c See ante, § 364-78. VOL. II. - - 53 d State v. Glaze, 9 Alabama, 283. For other cases on indictments see Maull v. State, 37 Alab. 160; Wasden v. State, 18 Ga. 264; State v. Lyerly, 7 Jones N. C. 158; State v. Gartrell, 14 Ind. 280; State v. Fore, 1 Ired. 378; State v. Byron, 20 Mo. 210. e Ante, § 2660. 833 the United States; though from the reason that the subject is generally absorbed by statute, f no decision as to its common law character is to be cited. When carnal knowledge essential to. - In Ohio, emissio seminis is essential to constitute the offence; g but this ruling is peculiar to that state. Elsewhere the mere fact of marriage is adequate to sustain the indictment, without proof of carnal knowledge. h What relationship must exist. 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 of the marriage relation between the step-father and the step-daughter's mother.j Conviction of, under indictments for rape. - 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 averments. k Indictment. The scienter is necessary to the indictment.l It is sufficient to simply aver the relationship of the parties. It is not necessary to aver or prove the marriage by which that relationship was created. m Admission of relationship. - The defendant's admission of relationship with the person with whom he holds incestuous intercourse is sufficient proof of such relationship. n f U. S. v. Hiler, 1 Morris, 330; Com. v. Goodhue, 2 Metc. 193; People v. Murray, 14 Cal. 159. g Noble v. State, 22 Ohio St. 541. j Noble v. State, 22 Ohio St. 541. 834 7 Williams v. State, 2 Carter (Ind.), 489. m Noble v. State, 22 Ohio St. 541. See State v. Schaunhurst, 34 Iowa, 547; People v. Jenness, 5 Mich. 305. Ante, § 2641. n Bergen v. People, 17 Ill. 426. § 2670. THE statutes relating to seduction are so numerous and divergent that any attempt at drawing from them a consistent and uniform definition of the offence would be futile. We must content ourselves, therefore, with a brief discussion of some of its chief statutory ingredients. "Abduction," it should be remembered, has been already discussed. a The Roman law made penal the seduction of widows as well as virgins. Stupram, which it interdicted, included in its widest sense every turpitudo; in a narrower sense every coitus illicitus ; in a sense still more contracted, unchastity with a virgo, vel vidua, vel puero; in the strict legal sense, unchastity effected with a virgo vel vidua honeste vivens. The seduction of such 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 stupratoribus, si honesti sunt, publicationem partis dimidiae bonorum; si humiles, corporis coërcitionem cum relegatione." al The canon law, in addition, in case of the seduction of a virgin by an unmarried man, required him to endow and marry her. a2 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." a Ante, § 1202. a1 Inst. de publ. jud. 4. 18. a2 C. I. X. de adult. 5. 16. 835 I. WHO ARE PERSONS IN CHARGE, AND WHAT IS "TAKING." § 2671. Under some of the statutes, it is indictable to seduce or inveigle a girl from persons having charge of her. These are defined 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. b 66 Taking" consists in receiving the girl as she elopes not merely from her guardians' residence, c but from their constructive possession. d It need only be for a few hours, if there be any unfair or immoral use made of the time. e At the same time, if the girl be left by her parents in the street without any visible tutelage exercised over her, the seducing her away is not such a "taking" as to satisfy the statutes. f And if she is taken under color of right, the statute, as in analogous cases in larceny, does not apply. g II. CHASTE CHARACTER. § 2672. This is necessary to the prosecution's case; and may be inferred from general evidence offered by the prosecution. h The defence, on the other hand, may prove single acts of unchastity on part of the woman, or lewd and wanton acts though not amounting to unchastity; h1 or, following the analogy of rape, may show general bad character for chastity. But if, since prior act of unchastity, she has reformed, she regains the protection of the statute. For it would be inhuman and perilous to assume b State v. Ruhl, 8 Iowa, 447; R. v. Meadows, 1 C. & K. 399. c R. v. Robb, 4 F. & F. 59 (R. v. Robins, 1 C. & K. 456); R. v. Mankletow, 6 Cox C. C. 143; Dears. C. C. 159; modifying R. v. Meadows, 1 C. & K. 399. F. 274; R. v. Hibbert, 11 Cox C. C. 246; 1 L. R. C. C. 184. 9 R. v. Tinkler, 1 F. & F. 513. Ante, § 1769. Post, § 2673 a. h West v. State, 1 Wisc. 209; Safford v. People, 1 Parker C. R. 474; though in Iowa it is said that chaste d Ibid.; R. v. Olifier, 10 Cox C. character is presumed and need not C. 402. be proved. State v. Higdon, 32 Iowa, 262. e R. v. Baillie, 8 Cox C. C. 238; R. v. Timmins, Bell C. C. 276; 8 Cox C. C. 401. As to how far "going" is "inveigling," or "taking," see Carpenter v. People, 8 Barb. 603; People v. Parshell, 6 Parker C. R. 129. f R. v. Burrell, L. & C. 354; 9 Cox C. C. 368; R. v. Green, 3 F. & h1 State v. Shean, 32 Iowa, 88; People v. McArdle, 5 Parker C. R. 180. See Kenyon v. People, 26 N. Y. 203; S. C. 5 Parker C. R. 254. i Though see contra, Kenyon v. People, supra. that women, once fallen, but who have reformed, are to be afterwards exposed, without redress, to a seducer's acts. The policy of the law in such cases is to reclaim and guard. And rebutting evidence, to prove modesty and general chastity, may in such cases be received. k The question of character is of course for the jury. The prosecutrix may be cross-examined as to her chastity. m III. "PROMISE OF MARRIAGE." § 2673. This, which under the seduction statutes is an ingredient of the offence, must be a promise in the nature of a deceit. It need not be technically valid, for it is no defence that the defendant was married, and could not make such a promise. n If, however, the girl knew of such marriage, and was old enough to understand its bearings, there is no promise on which she can sustain a prosecution. o If the promise was the consideration of the seduction, it sustains the prosecution; otherwise not. p Deceit is an essential ingredient to the promise. pl IV. CONSENT. § 2673 a. Of course, as it is one of the points in the prosecution's case that the girl consented, consent, if seduction be proved, is no defence. q Under the English and other statutes, however, making the taking away from parents or persons in charge a part of the case, it is a defence to prove that the parent or guardian consented to the act.r But such consent is invalid if obtained by fraud. s j Com. v. McCarty, 4 Penn. L. J. 136; Boak v. State, 5 Iowa, 430; State v. Carron, 18 Iowa, 372; Carpenter v. People, 8 Barb. 603; Kenyon v. People, 26 N. Y. 203; People v. Millspaugh, 11 Mich. 278. k State v. Shean, 32 Iowa, 88. 7 State v. Carron, 18 Iowa, 372. m State v. Sutherland, 30 Iowa, 570. n People v. Alger, 1 Parker C. R. 333; Crozier v. People, Ibid. 453; Safford v. People, Ibid. 474. o Ibid. p Kenyon v. People, 26 N. Y. 203. |