State v. Foust

ELLETT, Chief Justice

(dissenting):

This case involves a most reprehensible crime, viz.: Intercourse with an adopted 16-year old daughter. A guilty defendant should not escape his just deserts on a mere technicality. The prevailing opinion reversed the conviction on the ground that the teenage daughter was an accomplice in the crime. With this reasoning I cannot agree.

In order to be an accomplice the witness must, at the time of testifying, be subject to conviction of the identical crime with which the defendant is charged.

Before she could be charged with incest, it would be necessary for her to be charged with being a delinquent child and there be a hearing thereon by the juvenile court. Not until that court had determined that she was a delinquent child could it then judicially confer upon her a different status and certify her for prosecution as an adult. Until those events occurred, the child would not be an accomplice and could not be charged with the same crime as is the defendant.

To hold her as an accomplice requires a holding, not that she is liable to punishment for the same crime as is her father, but that it is possible she might later on be so charged.

Another matter should be considered: The father and the girl were not chargeable with the same offenses. The father was charged with incest in that he had sexual relations with his daughter. If it ever became possible to charge the daughter, her charge would be that she had sexual relations with her father. If it be claimed that she was an accomplice with her father in the relations with herself, would not she then be guilty of two crimes, to wit: (1) as an accomplice with her father and (2) as a principal in the relations which she had with her father? Clearly she could not be charged twice for the one act, and if it be possible to charge her with incest, then she could not be charged with her father’s offense and therefore could not be his accomplice.

In my opinion the judgment should be affirmed.