Opinion of the Court-Morgan, J. Sec. 6809, Rev. Codes, declares who may be guilty of incest, as follows: "Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other. The degrees of consanguinity mentioned in sec. 6809, supra, are defined by sec. 2615, Rev. Codes, as follows: "Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate." It is clear that persons who are within the prohibited degrees of consanguinity may commit incest by intermarriage, or by the commission of fornication or adultery with each other, and it is equally clear that the word "adultery" was used in the charging part of this information in order to inform appellant that the state would rely upon and attempt to prove an act of sexual intercourse committed by himself and the prosecutrix at a time when one of them, at least, was married to another, and not upon marriage between themselves, nor upon fornication. It is true the information does not state, in so many words, that appellant committed an act of sexual intercourse with and carnally knew the prosecutrix, but the word "adultery" is of such common use and so well understood that we cannot imagine appellant to have been misled nor left in doubt as to what was meant by it. Sec. 7657, Rev. Codes, requires the offense charged in an information to be stated with the same fullness and precision in matters of substance as is required in indictments in like cases, and subdivision 2 of sec. 7677 provides that an indictment must contain "A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended." Sec. 7687 provides: "No indictment is insufficient, nor can the trial, judgment, or other proceeding thereon, Opinion of the Court-Morgan, J. be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits." This court has heretofore held, in construing these statutory provisions, that an indictment or information is sufficient if the words employed make the charge clear to the common understanding. (State v. Lottridge, post, p. 53, 155 Pac. 487, and cases therein cited.) We conclude that the information in this case states facts sufficient to constitute the offense of which appellant was convicted, and that no error was committed in overruling the objection. It appears from the testimony of the prosecutrix that she became pregnant; that shortly before this occurred she had frequently indulged in sexual intercourse, not only with appellant, but also with another man whom she afterward married and from whom she was divorced prior to making this complaint. She was permitted to testify, over objection, that appellant caused her to be pregnant. The following questions, among others, were propounded to her, and were answered by her: "Who was the cause of your being in a family way?" "How many times, if you know, were you in a family way, the direct cause being your father?" In response to questions which were objected to, she was further permitted to testify that she took some medicine which appellant gave her, and that it resulted in her having a miscarriage. In view of the admission of the prosecutrix that she indulged in sexual intercourse, not only with appellant but repeatedly with another man, shortly before she became pregnant, her testimony as to who was the cause of her pregnancy would be, at best, but a guess. It is likely to have misled the jury, and should have been excluded. Questions as to the result of the medicine she took called for expert testimony from a witness not qualified to answer, and the objection thereto should have been sustained. Upon the direct examination of Charles B. Goldsbury, a witness for the prosecution, after he had testified that the Opinion of the Court-Morgan, J. prosecutrix had visited his home, the following appears in the record: "Q. Do you recall one night when she didn't want to go home? "A. I recall a good many times when she didn't. "Q. Did she say on that night why she didn't want to go home? "Mr. Merrill.-We object as being hearsay, immaterial and incompetent. Also irrelevant. "Mr. Smith.-We offer it for the purpose of showing that. the girl did not want to go home on account of her father's actions, and that she was afraid to go home. "Mr. Merrill.-It is irrelevant, incompetent and immaterial. "Mr. Smith.-Maybe it is. "The Court.-Do you want to insist on the question? "Mr. Smith.-Yes. "The Court.-Let him answer. "A. In order that you may understand this fully, it would probably be well that I should state how it come about. "Q. State the whole thing." Whereupon the witness, after making an introductory statement, testified: "When this come up then, why she stayed at my place for some little time, and I went down by their place one day and when I come back she asked me how the little girl was, and I told her that they were all right, but they needed care, and that I thought she ought to go home and take care of them. She told my wife that that was the reason she didn't want to go home, that her father had been molesting and bothering her, and I says, 'Go home, and tell your father that if he doesn't let you alone that you will not stay there, but if he will let you alone and behave himself that you will stay there and attend to the children.' "Mr. Budge.-I move to have the entire answer stricken out as being hearsay and incompetent, and the jury be instructed to disregard it. "The Court.-The motion will be denied." Opinion of the Court-Morgan, J. The ruling of the court must have been based upon the theory that in a prosecution for rape or for assault with intent to commit rape, the fact that the victim made complaint shortly after the outrage may be shown as a corroborating circumstance. (State v. Neil, 13 Ida. 539, 90 Pac. 860, 91 Pac. 318.) Assuming that the same rule would apply in a prosecution for incest where the prosecutrix is under the statutory age of consent, as is the case here, and assuming that the testimony above quoted was relevant and had a tendency to show that appellant had attempted, or had accomplished, an act of sexual intercourse with her, yet it was error to admit a statement in detail of her complaint, and the motion to strike it out should have been granted. It is said in 33 Cyc. 1463: "It is admissible to show by testimony of the prosecutrix or other witnesses, in corroboration of her testimony, that complaint was made shortly after the commission of the alleged offense, and when, where, and to whom it was made, but by the weight of authority the evidence must be confined to the bare fact that complaint was made; the details or particulars of the complaint not being admissible as substantive testimony unless the statement is part of the res gestae. The particulars of the complaint are competent, however, by way of corroboration of the prosecutrix when her testimony has been impeached, or they may be brought out by defendant on cross-examination; and if defendant, on cross-examination, brings out a portion of the particulars, the rest may be brought out by the state." (See, also, State v. Harness, 10 Ida. 18, 16 Pac. 788; State v. Fowler, 13 Ida. 317, 89 Pac. 757.) No foundation was laid to introduce the details, or particulars, of the complaint made to the witness Goldsbury, since no showing had been made that appellant was present at the conversation, nor that an act of sexual intercourse had been recently committed, or attempted, upon the prosecutrix. Furthermore, it must be remembered that this testimony was adduced by the prosecution upon direct examination and as a part of its case in chief, and up to that time no effort had been made to impeach her. Opinion of the Court-Morgan, J. While this testimony may appear to be harmless in that a statement by the prosecutrix that appellant had been "molesting and bothering" her falls so far short of being an accusation of criminal conduct upon his part that it might not prejudice his substantial rights, still it must be remembered that a jury would be very likely to mistake such a statement, or complaint, for a corroborating circumstance and be misled by it. Complaint is made of the action of the court in giving a certain instruction to the jury, and in refusing to give one asked for on behalf of appellant. The instructions given fully and correctly state the law applicable to the facts in this case, and we find no error in that particular. Counsel for appellant insists that the evidence is insufficient to support the verdict and judgment of conviction. We will not quote from, nor comment upon, the evidence at length, but will say that the testimony of the prosecutrix is well-nigh incredible. According to her statement her father first attempted the heinous offense of which she finally accused him when she was but ten years of age, and for a number of years prior to his arrest he cohabited with her, and that one of these unnatural acts occurred within a very few days after she had an abortion and while she was suffering from the effects of it. By her own sworn statements she is shown to have been guilty of many acts of immorality with a number of men, and to have resented the restraint which her father sought to exercise in order to correct her propensity to waywardness in this particular. It appears from the record that among those who were guilty of criminal intercourse with her was her uncle, a young man 23 or 24 years of age, and that when appellant learned of the relations existing between them he drove the young man from the home. It is shown by the testimony of a younger brother and sister of the prosecutrix that she told them she was going to have appellant sent to prison, dispose of his property, appropriate the proceeds, have two of his children sent to the reform school, give two more of them to a relative, take another one with her, and that she and the |