Smith v. State , 108 Ala. 1 ( 1895 )

McCLELLAN, J.

Appellant was indicted and convicted of the statutory crime of incest committed by one act of sexual intercourse with his daughter. The evidence tended to show that the daughter did not consent to the act, but that the defendant accomplished his purpose by force or by putting her in fear. Several charges, were requested for the defendant which raise the question whether this offense can be committed unless the parties-mutually consent to the act.' Of this point it is said in 10 Am. & Eng. Ency. of Law: “Upon the question whether a person indicted for incest can be convicted, when the proof shows, facts constituting the crime of rape, the decisions are conflicting. It has been held that the crime can only be incest when the sexual act is committed with mutual consent; but the weight of authority' seems to be to the effect that where incestuous fornication is shown to have been cpmmitted by defendant, in'full knowledge of the relationship between h'ing-self and the other participant, the fact that he may have, or did use force in the accomplishment of his object is entirely immaterial, and he may be convicted of the crime of incest notwithstanding.’.’ — p. 341. This is an open question in Alabama. There is nothing in our statute defining the offense to prevent us from taking ground with what is said in the text quoted to be the weight of authority ; but to the contrary every element of the crime as denounced in our law may well exist as against one party to the sexual act though the other dirl not consent thereto and though the act was only accomplished by the man by such force or coercion brought to bear on the woman as would render the man guilty also of rape.™Code, §4013. And we see no reason why in • such case the man should not be convicted of incest upon or by analogy to the general principle that a conviction may be had for any less offense included in a greater one. We therefore hold that the several charges requested by the defendant below were properly refused.

The charge given at the instance of the State to the effect that if the deed was accomplished by the use of force or that the woman allowed the defendant to have intercourse with her through fear, she is not an accomplice of the defendant, and that of consequence her testimony does not as matter of law require corroboration, is a sound exposition o.f the law. — Whart. Cr. Ev. § 440 ; Freeman v. State, 11 Tex. App. 92.

Affirmed.