Howard v. State ( 1860 )

By the Court.

1. The crime of a person in having “carnal knowledge of his daughter or sister, forcibly and against her will,” as defined in the 4th section of the act of March 7, 1835 (Swan & Critchfield’s Stat. 404), and the crime of a person in having “carnal knowledge of any other woman or female child than his daughter or sister, as aforesaid, forcibly and against her will, “ as defined in the 5th section of said act, are distinct and separate crimes, and not merely different grades of the same crime.

2. In charging the latter crime, it is essential for the indictment to state that the woman or female child upon whom the crime is charged to have been committed is not the daughter or sister of the accused.

3. An indictment against H. and R., charging them jointly with having carnal knowledge of U. forcibly and against her will, the said U. “ not being the daugter or sister of them, the said IT. and R.,” is not a sufficient negative averment; for, notwithstanding such averment, the said U. may be the daughter or sister of H. or R.

Judgment reversed and cause remanded.