Summary
In State v Lee (196 Miss. 311, 17 So.2d 277), an appeal from a criminal conviction of incest, the question was whether an adopted daughter is a daughter within the incest statute forbidding sexual relations between persons within the degrees within which marriages are declared to be incestuous and void. The court held an adopted child was not a daughter within the statute, citing People v Kaiser (119 Cal. 456), defining "daughter" as an immediate female descendant, and not an adopted daughter, a stepdaughter or a daughter-in-law.
Summary of this case from Matter of Bagnardi v. HartnettOpinion
No. 35418.
March 13, 1944.
1. STATUTES.
Unless the contrary sufficiently appears, words in a statute are to be interpreted according to their usual and most common sense.
2. STATUTES.
The meaning of "daughter" as commonly used is the female offspring of a man or woman, an immediate female descendant.
3. STATUTES.
A criminal statute must be strictly construed in favor of the defendant.
4. CONSTITUTIONAL LAW. Statutes.
Courts may not impose punishment upon one not within the strict letter of the law irrespective of court's detestation of act charged.
5. CONSTITUTIONAL LAW.
Whether adopted daughter shall be brought within incest statute rests with Legislature and not with court (Code 1930, sec. 358; Code 1942, secs. 457, 458, 2000).
6. INCEST.
Under codal section providing that adultery or fornication by persons within degrees declared to be incestuous and void shall be punishable by imprisonment and codal sections declaring that father shall not marry his "daughter," stepdaughter, etc., adultery or fornication with one's adopted daughter is not punishable as "incest" (Code 1930, sec. 358; Code 1942, secs. 457, 458, 2000).
APPEAL from the circuit court of Pearl River county, HON. J.C. SHIVERS, Judge.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellant.
Section 774, Code of 1930, provides that persons being within the degrees within which marriages are declared by law to be incestuous and void, who shall cohabit, or live together as husband and wife, or be guilty of a single act of adultery or fornication, upon conviction shall be punished by imprisonment in the penitentiary for a term not exceeding ten years. Section 2359 of the Code of 1930 provides that the father shall not marry his daughter. Section 2360 of the Code of 1930 makes all marriages which are prohibited by these two sections incestuous and void. From a reading of these sections, the question presented is: What is the relationship of an adopted child to its foster parents, and will this relationship support the crime of incest?
The court held in the case of Spence v. State, 131 Miss. 91, 95 So. 97, that the evidence was found sufficient to support a verdict finding defendant guilty of incest or having carnal knowledge of his stepdaughter. Therefore, it naturally follows that if the artificial relationship or relationship by law would support the crime of incest between one and his stepdaughter, certainly, a relationship of an adoptive parent and an adopted child would support the crime, for the relationship created in law is the relationship of parent and child, and Section 358 of the Code of 1930 provides that an adoptive parent shall exercise all such power and control over adopted children as they do over their own children. It necessarily follows that such parent owes the adopted child the same duties, responsibilities, etc., as he owes "their own children."
Commonwealth of Kentucky v. Kirk, 212 Ky. 646, 279 S.W. 1091, 44 A.L.R. 816; 2 C.J.S. 448, Sec. 56, par. c. H.H. Parker, of Poplarville, and J.E. Stockstill, of Picayune, for appellee.
An adopting parent cannot be convicted for cohabiting with his, or her, adopted child, under our statutes prohibiting marriages of persons with persons of certain degree of kinship, and our statute defining incest.
Chancellor v. State, 47 Miss. 278; Spence v. State, 131 Miss. 91, 95 So. 97; Code of 1871, Secs. 1763, 2647; Code of 1871, Sec. 2487, Art. 3; Code of 1880, Secs. 1145, 1146, 2701; Code of 1930, Secs. 774, 2359, 2360.
See Definition of the word "daughter." People v. Kaiser, 119 Cal. 456, 51 P. 702; Black's Law Dictionary, p. 319; Webster's Universal Dictionary, p. 428; 17 C.J. 1131; 25 C.J.S. 1005.
See also Definition of the word "affinity." Chinn v. State of Ohio, 11 L.R.A. 630; Webster's Universal Dictionary, p. 30; Black's Law Dictionary, p. 49; 2 C.J. 377-378; 2 C.J.S. 991-992; 14 R.C.L. 32, Sec. 3.
The court's duty rests in construing and enforcing the statute, the legislative powers being vested entirely in the legislature, and the question here presented, regardless of the enormity of the offense attempted to be charged, directs itself entirely to the good judgment of the legislature of the state. The courts are powerless to legislate, or by judicial construction to make a prohibitive statute.
Hatton v. State, 92 Miss. 651, 46 So. 708; Yerger v. State, 91 Miss. 802, 45 So. 849; Hamner et al. v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; State Constitution, Article 1, Subsec. 1.
A demurrer was sustained to an indictment charging appellee with incest with his adopted daughter. Exhibited with the indictment, and made a part of it, is the decree of the chancery court by which the female concerned was adopted by appellee in the full measure as allowed by Sec. 358, Code 1930, — the adopted child not being otherwise related to appellee either by affinity or consanguinity.
The question whether a man may be deemed guilty of incest with his adopted daughter has not heretofore been presented in any appellate court, so far as we can find. Whether there has never before been any such case on its facts, or whether such a case has never heretofore been thought to fall within incest statute, we do not know. Certainly the charge is not within the common law, if it can be said that there is a common law on the subject, because the parties here are not related either by blood or marriage.
Sec. 774, Code 1930, Sec. 2000, 2 Code 1942, provides that "persons being within the degrees within which marriages are declared by law to be incestuous and void, who shall . . . be guilty of a single act of adultery or fornication, upon conviction shall be punished by imprisonment in the penitentiary," etc. Secs. 2359, 2360, Code 1930, Secs. 457, 458, 1 Code 1942, declare that the father shall not marry his daughter or his stepdaughter, etc. The question then is whether an adopted daughter is a daughter within the cited statutes, — in the criminal aspect. Admittedly she is not a stepdaughter.
The rule of construction generally applicable to statutes is that, unless the contrary sufficiently appears, words in a statute are to be interpreted according to their usual and most common sense, and for this usual and most common sense, the courts may, as a proper course, resort to the standard dictionaries in general use among the people; and doing so we find the definition of daughter as commonly used to be as follows: "The female offspring of a man or woman; an immediate female descendant." Or turning to the law dictionaries we find: 1 Bouv. Law Dict., Rawle's Third Revision, p. 757; "Daughter, a female child; an immediate female descendant." Black's Law Dictionary, "Daughter, an immediate female descendant." See, also, 17 C.J., p. 1131; 25 C.J.S., Daughter, p. 1005. In considering what was charged in an indictment by the use of the word daughter it was said in People v. Kaiser, 119 Cal. 456, 51 P. 702, 703, that "the word `daughter' means, and is generally understood to mean, `an immediate female descendant,' and not an adopted daughter, a stepdaughter or a daughter-in-law."
And what we have here is a criminal prosecution as to which the rule is that the construction is one of strictness in favor of the defendant, and that whatever sense of detestation the court may entertain towards a party upon the facts, courts nevertheless may not impose punishment upon one not within the strict letter of the law.
The wisdom of this rule is illustrated by the present case. Some members of a court might regard relations such as here charged as deserving the same punishment as in the case of a father and his daughter or stepdaughter, while others might say that in the case of an adopted daughter the punishment should be the same as in the case of a guardian of the person and a female ward who resides with him, and is not his wife. As to the latter the legislature has made it, not a felony, but a misdemeanor, Sec. 775, Code 1930, Sec. 2001, 2 Code 1942. What punishment the legislature would prescribe in the case of an adopted daughter, whether that pronounced in the case of a daughter or stepdaughter, or whteher that in the case of a female ward, or whether somewhere in between the two, there is no way now to know.
It is, therefore, for the legislative department to include an adopted daughter by a plain statute, fixing the punishment, not for us to engraft it or read it into one of the existing statutes by way of construction, however much we may think it ought to be somewhere there. Compare Chancellor v. State, 47 Miss. 278. We are of the opinion that the action of the learned circuit judge in sustaining the demurrer was correct.
Affirmed.