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§ 32. Incest - Stepfather and Stepdaughter. - Cohabitation between a man and his stepdaughter is not incest in Mississippi.1

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§ 33. Incest-Stepfather and Stepdaughter When Relation Ceases. The relationship ceases to exist after the dissolution of the marriage between the stepfather and the stepdaughter's mother.2

§ 34 Incest-Knowledge of Relationship Essential. — In Indiana it is held that on a charge of incest between stepson and stepmother, both must have knowledge of the relationship.3

§35. Emissio Seminis Essential. -In Ohio emissio seminis is a requisite

to the crime of incest.1

§ 36. Incest-Evidence Insufficient. -In Tuberville v. State, the evidence on appeal was held insufficient to sustain a conviction for incest.

37. Sodomy not a Crime in Some States. - It has been held in several cases in Texas that the criminal Code of that State has provided no punishment for the crime of sodomy. In 1860, it was laid down in Iowa that sodomy was not an indictable crime in that State,' and the same conclusion is reached in Alabama in 1822. In the latter case the court said: "Though unquestionably a crime of the highest moral turpitude, the very mention of which is a disgrace to human nature, a crime not fit to be named among Christians, the statutes of this State have taken no notice of it. Is it an indictable offense by the common law?

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"It does not appear that it was punishable in England otherwise than by death, excepting that in the time of Popery it was subject to ecclesiastical censure. By the ancient Britons it was sometimes punished by burning. In the time of Richard I., the practice was to punish by hanging. The statute of Henry VIII. after reciting that there was not a sufficient punishment appointed, declares it felony without benefit of clergy. It is said in the English books, that previous to the passage of this statute, the practice of punishing this offense with death had been for a long time discontinued; and this is strongly corroborated by the enactment of the statute and its recital prefixed. It does not appear what other punishment, or that any, was inflicted, from the time of discontinuing capital punishment, and till the enactment of the statute of Henry VIII. This crime then is not indictable by the common law, or by any statute of this State." 10

§38. Sodomy - Per Anum. --It is not sodomy unless the crime is committed per anum. In R. v. Jacobs," the prisoner was tried and convicted upon an indictment for sodomy committed on a boy seven years old. It appeared that he had prevailed on the child to go with him to a field; that when there he

1 Chancellor v. State, 47 Miss. 278 (1872). Noble v. State, 22 Ohio St. 541 (1872). Baumer v. State, 49 Ind. 544.

Noble v. State, 22 Ohio St. 541 (1872). $4 Tex. 128 (1849).

'State v. Campbell, 29 Tex. 44; Ferrell v. State, 32 Tex. 378; Frazier v. State, 39 Tex.

7 Estes v. Carter, 10 Iowa, 400 (1860). Coburn v. Harwood, Minor 93; 12 Am. Dec. 37 (1822).

96 Bac. 327.

10 See Turner's Dig., p. 247, sec. 4; Laws Ala., p. 522, sec. 4.

11 R. & R. 331 (1817).

forced the boy's mouth open with his fingers and put in his member and emitted in the boy's mouth. On appeal all the judges held that this did not constitute the crime of sodomy.

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— Fowl not a "Beast." An unlawful connection with a fowl is not sodomy, a fowl not being a "beast."1

$ 40. Miscegenation - Cohabitation without Marriage. -- Cohabitation without a previous marriage between a negro and white woman is not within the Texas statute.2

§ 41.

Woman less than One-fourth Negro.—The marriage of a white man with a woman with less than one-fourth negro blood is not within the Virginia statute.3

§ 42.

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Presumption that Woman not Negro. — And a woman who had a white father and a "brown" mother is presumed not a "negro."

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$ 43 — Indian Blood-The North Carolina statute of 1838, included only persons of color within the third degree, and therefore where one of the parties was of Indian blood, but of what degree it was not shown, it was held not within the statute.5

§ 44. - Marriage Valid where Made. — A marriage valid where made is valid everywhere."

§ 45. Neglect of Children-Must be Duty on Person to Supply Food.There must be a duty resting on the person. In R. v. Edwards,' it appeared that the prisoner was a married woman and that she had three children, the young. est of whom being the deceased, who at the time of the death, was little more than three months old, and not weaned. It was proved that the prisoner was in the habit of leaving the child in her husband's house without food for many hours together, and Mr. Heatland, the surgeon who examined the body of the child after death, stated that, in his judgment, the child had died from starvation. Verdict, guilty.

Lumby, amicus curia, suggested that the indictment was bad, as it did not charge that it was the duty of the prisoner to maintain the child, neither did it state that the prisoner was the mother of the deceased, or in any way liable to take care of it.

PATTESON, J. (having read the indictment). This indictment is bad. It does not state any duty, nor does it state that the prisoner was the mother of the deceased. Where the indictment charges an imprisoning it shows an obligation to maintain, for, if you imprison a man you must feed him. But, in this case, the judgment must be arrested. be literally true, and yet the prisoner and to each other. In the case of an older

1 R. v. Multreaty, 1 Russ. on Cr. 938.

2 Moore v. State, 7 Tex. (App.) 608 (1880). 3 McPherson v. Com., 28 Gratt. 939 (1877) Stewart v. Com., Id.

4 Id.

5 State v. Melton, Busb. (N. C.) 49 (1852).

Every word on this indictment may deceased might have been strangers child, it would be the duty of the hus

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band to supply food, but in a case like the present, the mother would be liable if the death arose from her not suckling the child when she was capable of doing so.

Judgment arrested.

§ 46. Neglect of Children- Duty to Apply for Relief - Liability of Husband and Wife - Time. -In R. v. Mabbett,1 the prisoners, John Mabbett, and Hannah, his wife, were indicted for the manslaughter of Sarah Mabbett, their infant child of tender years, by neglecting to provide it with proper food and nourishment, according to their duty in that behalf.

The following evidence was given for the prosecution:

Mr. Porten, the relieving officer of the Poor Law Union, went into the prisoner's house, and there saw two of their children; one of them, a year old, was dreadfully emaciated. They attracted his attention at once, and he asked the female prisoner what she had been doing? She said she had done for them as well as she could. The witness wrote an order for the medical officer to attend. The prisoner at first said she would go. Witness told her that she had better not leave the children. She then said she would send her little boy. Witness sent a woman, and returned himself in a hour. He then asked the prisoner how she could account for the state of the children, and said he thought they had been starved. She replied that her husband had not brought any money for a fortnight, and there was no food in the house. Witness looked round the house and could not see any description of food. He left arrow-root, sugar, and bread, and told the prisoner to go to a neighbor and get some milk to make up the arrow-root. She said she would do so. Witness asked her why she did not apply to him, as her husband left her so destitute, for he (witness) would have relieved her or sent her to the work-house, as he had done before. She said she did not like to apply on account of her husband; and added, "you know about it." Witness understood her as not liking to have any steps taken against her husband. He had been proceeded against for leaving his family about a year before, but was not sent to prison. No application had been made to the Union for some time before. During the husband's illness in February previously, the family had been relieved. Two children died. One of them, Sarah, the same evening. There were other children apparently healthy; the oldest was seventeen years of age, and the youngest (next to the deceased children) was three years old. All these were old enough to eat potatoes. The prisoner told witness that her son Charles earned six shillings a week; Samuel, aged fifteen, four shillings; and William, aged eleven, three shillings a week, making a total of thirteen shillings. She told witness she had received part of the children's earnings. The general rate of wages for laborers at that time (harvest) was ten shillings a week. The male prisoner could not have failed to notice the condition of his children.

On cross-examination by the female prisoner, the witness stated that in February the husband had two shillings and seven loaves a week from the Union. Afterwards witness refused to give relief, because he heard the male prisoner had eight shillings a week from his club.

Watts, a police sergeant, stated that in consequence of information from the surgeon, he went to the prisoner's house; the woman was at home; Sarah, the dead child, was lying on a table; another twin child was then alive in a cradle.

1 5 Cox, 339 (1851).

Witness asked when the child was taken ill? She said: "Yesterday morning, at nine o'clock, it was taken with purging and vomiting, and died to-day at nine o'clock." Witness left the house, and sent for the coroner. On his return he found the child in the cradle in a dying state. The two looked as if they were starved. Witness asked the woman if her husband had work? She said: "Plenty of work, but last week, and part of the week before, he was on the puddle (i.e., drinking) and spent all the money he had, and came home and took all he could find." She added: "We were three or four days last week without any food but potatoes, and some days even without them. Poor little things! with what I had I could not support them; but I do not want the world to know what he is to me. The world will talk fast enough about it." Witness then went away. The husband was at work at that time; witness saw him in a field the same day.

MARTIN, B., here asked how the prosecution proposed to make out the case, if the female prisoner had not the means of supporting her children.

Skinner, for the prosecution, said the proposition he should submit was that parents were bound to apply for relief if they had not the means of supporting their children.

MARTIN, B., inquired whether there was any obligation on the parents to go to the Union. Must not the receipt of money in their hands be affirmatively proved?

Powell, amicus curiæ, said that the law as to the liability of parents to support their infant children had been recently touched upon by Mr. Justice Williams in the case of Reg. v. Bubb and Hook.1

The report was handed to his lordship and the case proceeded. Marianne Blackwood, a lady living near the prisoner's cottage, deposed to the neglected state of the children. They were dirty and appeared hungry. Witness spoke frequently to the mother about cleanliness, and afterwards about food; she sometimes said that she had fed them; at other times she said their state was the consequence of her husband's drunkenness. Witness proposed and did take the children away, and had them washed and fed; they did well and throve for about six weeks, when the woman refused to let witness have them longer, and never came to ask her assistance. Witness consequently did not see the children until after their death, an interval of eight or nine months. The child Sarah, after its death, was not so large as it was before; the other children were healthy and strong.

Mr. Taylor, a surgeon, deposed that the immediate cause of Sarah's death was English cholera. The extreme emaciation would increase it; insufficient diet had a tendency to produce English cholera. Witness looked at another child, lying in a cradle; it was extremely emaciated. Sarah's weight was eight pounds, two ounces; a new born child weighs generally eight pounds. Witness was of opinion that insufficiency of food produced the symptoms which were the immediate cause of death. Medicine of a proper kind had been given to the children by a lady.

This being the case for the prosecution, Mr. Baron MARTIN said he would speak to Mr. Justice ERLE, sitting in the other court.

Skinner said, he submitted that it was the imperative duty of parents, if unable to provide for infant children by labor, or out of their own resources, to seek for assistance.

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1 Reported in 4 Cox Cr. Cas. 455.

MARTIN, B. Yes, you say the parents are bound to apply to the Union or to private charity.

His lordship then retired to consult Mr. Justice ERLE. On his return, he said: "I have read my notes to Mr. Justice ERLE, and he is of my opinion, that there is not a particle of evidence against the husband. With respect to the wife, he thinks that a woman who, having a child, willfully neglects for four or five days going to the Union for the purpose of getting support for it, she knowing that such neglect would be likely to produce the death of the child, it would be manslaughter. He thinks, however, that the circumstances of this case do not amount to that. There ought to be a distinct abstaining to go for several days, of which in this case there is no evidence, and therefore he thinks that I ought to direct an acquittal.

In summing up to the jury, His Lordship said: "There is no evidence against the husband at all, for although a man is responsible for what he says himself, he is not responsible for what others say of him. The man certainly appears to be morally guilty, as he was spending the money on himself that ought to have been applied to the support of his family. With respect to the woman, what the surgeon states is, that the child died of cholera or bowel complaint, and that want of food would produce that effect. There is no evidence that the woman had money or food. What is relied in support of this charge is that she did not apply to the Union. I have had the benefit of the opinion of Mr. Justice ERLE, and he says it is the bounden duty of all persons having children, when they themselves can not support them, to endeavor to obtain the means of getting them support; and that if they will willfully abstain from going to the Union, where they have by law a right to support, and their children die, they are criminally responsible for it. Here the evidence of the woman's willfully abstaining from applying for relief is not, in Mr. Justice ERLE's opinion or in mine, sufficiently made out, and you will probably adopt the view of that learned judge, and acquit in this case.

Verdict, not guilty.

There was a second indictment for the manslaughter of James, the other infant child, but no evidence being offered, a verdict of not guilty was taken accordingly.

§ 47. Child Must be Unable to Help Itself. The child must be of tender years and unable to provide for itself.1 A girl of sixteen, for example, is not within the rule.2

48. Child Must be Actually Injured.

The health of the child must be actually injured.3 Though the child be abandoned, yet if another save it from injury, the offense is not complete.1

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§ 50.

Not Obliged to Borrow. And if the parent have not the means, he is not obliged to borrow or run into debt to obtain them."

1 R. v. Friend, R. & R. 20 (1802).

2 R. v. 8, 5 Cox, 279 (1851). R. v. Hogan, 5 Cox, 255 (1851). 1 R. v. Philpot, 6 Cox, 140 (1853).

5 R. v. Hogan, 5 Cox, 255 (1851); R. v. Chandler, 6 Cox, 519 (1855); R. v. Rugg, 12 Cox, 16 (1871).

• R. v. Vann, 2 Den. 325 (1851).

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