Cobb v. State , 125 Ga. App. 556 ( 1972 )

125 Ga. App. 556 (1972) 188 S.E.2d 260

COBB
v.
THE STATE.

46885.

Court of Appeals of Georgia.

Argued February 7, 1972. Decided February 23, 1972.

Chrietzberg & Anderson, L. C. Chrietzberg, for appellant.

H. Eugene Brown, District Attorney, for appellee.

CLARK, Judge.

This appeal is from a judgment of conviction and sentence for the offense of incest. The appeal was originally taken to the Supreme Court of Georgia wherein appellant attacked the constitutionality of that portion of the Act of 1856 (Ga. L. 1855-6, pp. 229, 231; Code § 59-806) relating to questions to be asked of prospective jurors on voir dire.

As the constitutionality of the Code section has previously been upheld, and since, subsequent attack does not invoke the jurisdiction of the Supreme Court where jurisdiction of the subject matter is otherwise in this court, the case was transferred. See Cobb v. State, 228 Ga. 292 (185 SE2d 378).

1. In the enumerations remaining for this court's consideration appellant contends the State failed to carry the burden of proving knowledge by the accused of the forbidden familial relationship, a necessary allegation of the indictment which charged sexual intercourse with his daughter, "whom the accused knew to be his daughter." This indictment complied with the statute (Code Ann. § 26-2006; Ga. L. 1968, pp. 1249, 1299) which states "a person commits incest when he engages in sexual intercourse with a person to whom he knows he is related..." within the incestuous category.

The fact of the relationship is not disputed, having been proved by the birth certificate which was admitted without objection. That fact together with portions of defendant's lengthy unsworn statement, in which he stated his children had "been with me all their lives" and that he worked for and provided for them was supplemented by evidence that the defendant upon apprehension in flagrante delicte stated they were married. Knowledge may be inferred from circumstances. Birdsong v. State, 120 Ga. 850, 852 (48 SE 329); Rivers v. State, 118 Ga. 42 (2) (44 SE 859).

2. There was ample evidence to support the verdict.

Judgment affirmed. Jordan, P. J., and Deen, J., concur.