State v. Bartley , 304 Mo. 58 ( 1924 )


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Joseph Bartley was convicted in the Circuit Court of Callaway County of falsely and maliciously accusing a female of incest. On a writ of error, the Kansas City Court of Appeals affirmed the conviction. Judge BLAND deeming the opinion of the court to be in conflict with certain previous decisions of the Supreme Court, the case was certified and transferred to this court.

The amended information, based on Section 3612, Revised Statutes 1919, charges that Bartley falsely and maliciously imputed to Grace A. T____ the crime of incest, by falsely and maliciously speaking to Ed. Love certain words by which he meant and was understood to mean that he, Bartley, had had sexual intercourse with said Grace A. T____, the said Grace A. T____ being the niece of the said Joseph Bartley. A trial was had, *Page 61 resulting in a verdict of guilty and assessing the defendant's punishment at a fine of $400.

Bartley is a half-brother of the mother of Grace A. T____. They are, therefore, uncle and niece of the half blood. Section 3511, Revised Statutes 1919, defining incest, reads:

"Persons within the following degrees of consanguinity, to-wit: Parents and children, including grandparents and grandchildren of every degree, brothers and sisters of the half as well as of the whole blood, uncles and nieces, aunts and nephews, who shall intermarry, or who shall commit adultery or fornication with each other, or who shall lewdly and lasciviously cohabit with each other, shall be adjudged guilty of incest, and be punished by imprisonment in the penitentiary not exceeding seven years."

Section 7299, Revised Statutes 1919, prohibiting marriage between certain relatives, reads:

"All marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as of the whole blood, and between uncles and nieces, aunts and nephews, first cousins, white persons and negroes, white persons and Mongolians, are prohibited and declared absolutely void, and this prohibition shall apply to illegitimate as well as legitimate children and relatives."

Falsely and maliciously to accuse any female of incest is a misdemeanor. [Sec. 3612, R.S. 1919.]

The majority opinion of the Court of Appeals holds that the words "uncles and nieces," as used in the statute (Sec. 3511, supra), includes uncles and nieces of the half as well as of the whole blood. The opinion cites State v. Reedy, 44 Kan. 190, where the court, at page 192, said: "An uncle is defined to be the brother of a father or mother, and according to the common understanding, there is no distinction between the whole and the half blood." In support of this proposition, the opinion quotes 1 Bishop on Marriage and Divorce, sec. 317 (Sec. 748, Ed. 1891): "The relationship by half blood is the same in *Page 62 these cases as by whole blood; so that, for example, it is incest for a man to marry the daughter of his brother of the half blood, or the daughter of his half-sister." The learned author, as will be seen by the context, was treating of the English ecclesiastical law (32 Hen. 8 c. 38), which declared lawful the marriage of all persons "not prohibited by God's law to marry." [Ib. sec. 737.] It prohibits marriages between persons related by blood or marriage within the Levitical degrees. [Lev. ch. 18.] "Under the statute it is incestuous for a man to marry his deceased wife's sister, or for a woman to marry her deceased husband's brother." [Sec. 747.] In another work he says: "At the time of the settlement of our country, incest, the same as common adultery and fornication, was punishable as an offense against the ecclesiastical laws, but it was not indictable in the common law courts. It is not, therefore, indictable under our common law." [Bishop on Statutory Crimes (3 Ed.) sec. 728.]

We must, therefore, look to the statute for the definition of incest. Are uncles and aunts of the half blood, as well as of the whole blood, within the prohibited degrees of relationship? Criminal statutes are to be construed strictly; liberally in favor of the defendant and strictly against the State, both as to the charge and the proof. No one is to be made subject to such statutes by implication. Where one class of persons is designated as subject to its penalties, all others not mentioned are exonerated. [State v. Jaeger, 63 Mo. 403, 409; State v. Gritzner,134 Mo. 512, 527; State ex rel. v. State Board of Health,288 Mo. 659, 671, 232 S.W. 1031; State v. McMahon, 234 Mo. 611, 137 S.W. 872.] Such statutes are not to be "extended or enlarged by judicial construction so as to embrace offenses or persons not plainly written within their terms." "The reason of the rule is found in the tenderness of the law for individuals, and on the plain principle that the power of punishment is vested in the Legislature and not in the judicial department." [State v. Reid,125 Mo. 43, 48, and cases cited.] We cannot interpolate into the statute the words "uncles and aunts of the half blood." [State v. *Page 63 Owens, 268 Mo. 481, 485, 178 S.W. 1189.] We might, with equal propriety, interpolate the words "first cousins" into the statute, because Section 7299, Revised Statutes 1919, forbids their intermarriage. The statute cannot be "regarded as including anything not within its letter as well as its spirit; that is not clearly and intelligibly described in the words of the act, as well as manifestly intended by the Legislature." [State ex inf. Collins v. St. Louis Ry. Co., 238 Mo. 605, 612, 142 S.W. 279.]

After quoting Sections 3511 and 7299, Revised Statutes 1919, supra, Judge BLAND, in his dissenting opinion, said: "Both of these statutes mention brothers and sisters of the half as well as the whole blood. It is apparent that the Legislature in enacting these statutes had in mind relationships of the half as well as the whole blood, and if it intended the statutes to cover aunts and nieces of the half blood, why did it not say so? I think that the well-established canon of statutory construction,expressio unius est exclusio alterius, applies to these statutes. When the Legislature mentioned brothers and sisters of the half blood it necessarily excluded all other relationships of the half blood."

We concur in Judge BLAND's opinion. The court erred in overruling the demurrer to the evidence. The judgment is reversed. Railey, C., concurs.

The foregoing opinion of HIGBEE, C., is adopted as the opinion of the court. All of the judges concur.