Opinion
No. 37478.
April 10, 1950.
1. Statutes — criminal law — strict construction.
The construction of a criminal statute is one of strictness in favor of the defendant, and courts may not impose punishment upon one not within the strict letter of the law.
2. Incest — marriage of son-in-law to his mother-in-law — not within statute.
It is not clear that the statutes prohibit the marriage of a son-in-law to his mother-in-law, wherefore a son-in-law is not subject to prosecution for so marrying. Secs. 457, 458 Code 1942.
3. Statutes — criminal law — reasonable precision and clarity required.
The legislature, in declaring what shall constitute a crime or punishable offense, must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain understandable rule of conduct and know what acts to avoid.
4. Same continued — due process of law.
The act to be punished under a criminal statute must be plainly and unmistakably within the statute, and a statute that either forbids or requires the doing of an act in terms so vague that men of common understanding must guess as to its meaning and differ as to its application lacks the first essential of due process of law.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Lamar County; J.C. SHIVERS, Judge.
R.G. Livingston, District Attorney, for appellant.
Incest according to our understanding is a purely statutory offense and the present indictment was founded upon the provisions of Section 2234, Code 1942, read in connection with Section 458, Code 1942.
Section 458, Code 1942, reads as follows: "Unlawful marriages — what marriages are incestuous. — The father shall not marry his son's widow; a man shall not marry his wife's daughter, or his wife's daughter's daughter, or his wife's son's daughter, or the daughter of his brother or sister; and the like prohibition shall extend to females in the same degree; and all marriages prohibited by this and the preceding section are incestuous and void."
Substituting the female for the male in the same degree in the first sentence of the statute, we have "The mother shall not marry her daughter's widower", and since the appellee, defendant below, being the widower of Evon Rayborn Winslow, married Johnnie Rayborn Winslow, the mother of Evon Rayborn Winslow, the marriage was incestuous and void under the provisions of said statute.
There were two principal objections to the indictment on the hearing of the demurrer. First, it was stated that before a marriage is declared to be incestuous and void there must be a relationship between the parties either of consanguinity or affinity within the degrees prohibited by law and that the death of a person without leaving living issue severs the ties of affinity theretofore existing between her husband and her family. At this point, let it be said that Evon Rayborn Winslow, whose widower the appellee is, died without leaving children surviving. Second, it is claimed that a criminal statute must be strictly construed in favor of the defendant and that the principles of statutory construction forbid taking words outside the statute and substituting them for words within the statute. In other words, it is claimed that we have no right to substitute the word "mother" for "father", the word "daughter's" for "son's", and the word "widower" for "widow", in the first sentence of Section 458 in order to bring the defendant under the statute.
Defendant below, appellee here, appears to have relied for support of his position, i.e., that the death of his wife, Evon Rayborn Winslow, severed the ties of affinity between himself and Johnnie Rayborn Winslow, mother of Evon Winslow, and thus made a marriage between them legal and binding and not within the provisions of the cited statutes, upon the general statement laid down in Subsection 6, 27 Am. Jur. p. 291 under Incest, there citing among other cases, Tagert v. State, 143 Ala. 88, 39 So. 293, 111 Am. St. Rep. 17; Wilson v. State, 100 Tenn. 596, 46 S.W. 451, 66 Am. St. Rep. 789.
When, however, we look at the cases cited above, we find that the statutes there under consideration differ materially from the Mississippi statute above quoted.
Although the texts and cases we have read on the subject usually define incest as consisting of sexual intercourse, either under form of marriage or without it, between persons too closely related in consanguinity or affinity to be entitled to intermarry, yet we do not find any decisions holding that a relationship between the parties of consanguinity or affinity must exist unless the statute makes it necessary. For example, an adopted daughter is not related by consanguinity or affinity to her foster parents, yet a father may be prohibited from marrying his adopted daughter provided the statute specifically forbids such a marriage. Our position is that since the crime of incest is purely statutory and unknown to the common law, marriage may be prohibited within the family circle regardless of whether or not the ties of affinity have been severed. Our statute by operation of law continues the binding ties of affinity after death in the case at bar and says specifically that a father shall not marry his son's widow nor a mother her daughter's widower.
It was maintained by the defendant below, appellee here, that since these statutes must be strictly construed that the principles of statutory construction forbid the substitution of certain words within the statute, i.e., that the provision of Section 458 Code 1942, providing that "a like prohibition shall extend to females in the same degrees" does not authorize the substitution of "mother" for "father", of "daughter's" for "son's" and of "widower" for "widow". When we read the statute, we find that there is only one way it can be made to extend to females in the same degrees and that is to substitute in the sentence "The father shall not marry his son's widow" the feminine gender for the masculine gender so as to make the sentence read: "The mother shall not marry her daughter's widower". Any other method would make the statute meaningless insofar as the same extends the prohibition to females in the same degree. Only known and commonly accepted feminine equivalents are thereby substituted for the named masculine gender.
George H. Ethridge, Acting Attorney General, also for appellant.
The question here presented is one of very serious consequences for if the relationship is preserved by the dead wife or husband and would constitute incest then many marriages would be criminal and incestuous, as for instance, the not unusual practice of the husband of a deceased wife marrying his deceased wife's sister. Such marriages are rather frequent and have not been considered criminal in this state and to hold otherwise would render void many marriages and make the parties criminal who entered into them and would affect even the highest circles of society. It appears that in many cases the fact that the sister of the deceased wife was related to the children of the husband and deceased wife would make her more interested in the walfare of the children. There is a note to the case of Tagert v. State, 143 Ala. 88, 39 So. 293, 111 Am. St. Rep. 17, beginning at page 19 where the subject matter has been dealt with in many diverse cases and ways. In the later Alabama case of Henderson v. State, 157 So. 884, that Court decided that where no issue resulted from the marriage the stepmother's relations by affinity to stepson ceased upon the death of the stepson's father so that stepmother and stepson were not guilty of incest in marrying. See also the case of Wilson v. State, 100 Tenn. 596, 66 Am. St. Rep. 789.
I think it is very important for the welfare of the State for the Court to announce the law as to whether death severs the relationship between a husband and his deceased wife's relatives. I think, therefore, the Court should announce the law bearing on this although, in my opinion, the indictment was insufficient to come within the language of the statute on such relationship.
J.W. Shanks and L.C. Bridges, for appellee.
"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. . . . 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." State v. Lee, 196 Miss. 311, 17 So.2d 277.
The same rule would apply in the case of a son-in-law who married his mother-in-law. Section 458 Code 1942 sets out in detail what marriages of a man are incestuous and nowhere in the statute does it say in plain, concise, understandable language that a son-in-law shall not marry his mother-in-law, and the only basis upon which the present indictment was founded was to go through a series of back doors to apply the statute to a father who should not marry his son's widow and then by placing a contrary construction upon the clause, "and the like prohibition shall extend to females in the same degree", to mean that a mother should not marry her daughter's widower and then after arriving at that construction then to imply that a son-in-law should not marry his mother-in-law. We cite specially the rule as stated in 14 Am. Jur. Sec. 19, p. 773-774 entitled "Requisites of Criminal Statutes".
The several courts in the United States have uniformly upheld the general statement laid down in Subsection 6, 27 Am. Jur. p. 291 under Incest, which reads as follows: "It cannot be seriously doubted that in order to establish the crime of incest it must appear that the inhibited relationship between the accused and the other party to the alleged criminal act existed at the time of the commission of the act. If the relationship, previous to the act of marriage or sexual intercourse, has ceased to exist, then the act of intermarrying or sexual intercourse is not incestuous, however offensive it may appear to good morals or punishable as a crime under other criminal statutes. The death of a spouse, without issue surviving, severs the tie of affinity of the surviving spouse and the consanguinity of the deceased, for the purpose of determining the incestuous character of sexual relationships."
As was stated by appellant in its brief the former wife of appellee, the daughter of Johnnie Rayborn Winslow, died without issue, we have failed to find any Mississippi cases in point, and counsel for appellant has cited none, but we call the Court's attention to the following cases: Tagert v. State, 39 So. 293; Dearmond v. Dearmond, 10 Ind. 191; Bigelow v. Sprague, 140 Mass. 425, 5 N.E. 144; Johnson v. State, 20 Tex. App. 609[ 20 Tex.Crim. 609], 54 Am. Rep. 535.
The accused, Earl Winslow, was indicted by the Grand Jury for marrying his mother-in-law, in alleged violation of Section 458, Code of 1942, which undertakes to prescribe the degrees within which certain marriages are prohibited by law as incestuous, the penalty therefor being prescribed by Section 2234, Code of 1942, and fixed at a fine of $500.00 or imprisonment in the State Penitentiary not longer than ten years or by both such fine and imprisonment. These statutes also declare that marriages within the degrees prohibited by law shall be incestuous and void.
The accused interposed a demurrer to the indictment on the ground that it charged no crime. The demurrer was sustained by the trial court, and the district attorney prosecutes this appeal.
Section 458, Code of 1942, reads as follows: "The father shall not marry his son's widow; a man shall not marry his wife's daughter, or his wife's daughter's daughter, or his wife's son's daughter, or the daughter of his brother or sister; and the like prohibition shall extend to females in the same degrees; and all marriages prohibited by this and the preceding section are incestuous and void."
It is the contention of the district attorney that the provision in the above-quoted statute which reads "and the like prohibition shall extend to females in the same degrees" means that in the first provision of the statute reading "the father shall not marry his son's widow", the word mother should be substituted for the word "father" therein so that such provision would read "the mother shall not marry her daughter's widower". The indictment, however, is not against the mother of Earl Winslow's deceased wife, but is against the accused, Earl Winslow, alone.
It is to be noted from a reading of the entire Section 458, supra, that the statute may have been designed to prevent the father, as the head of the family circle, and who would ordinarily be a much older person than those whom he is forbidden to marry, from taking advantage of his status and marrying one of the persons named in the statute, but the trouble with this construction of the purpose of the statute is that the lawmakers also enacted the immediately preceding Section 457, of the said Code, which provides, among other things, that: "The son shall not marry his grandmother, his mother, or his stepmother; . . . or his aunt, being his father's or mother's sister. . . ."
It is suggested by the accused that the proper interpretation of the provision in Section 458 reading "and the like prohibition shall extend to females in the same degrees", means that where the father marries his son's widow, his wife's daughter, or any of the other persons mentioned in this statute, both the man and the woman involved in such marriage shall be guilty of the violation of the law.
But as was said in the case of State v. Lee, 196 Miss. 311, 17 So.2d 277, 278, 151 A.L.R. 1143, "what we have here is a (Hn 1) 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. . . ."
(Hn 2) Construing Section 457 and 458 as setting forth the conditions under which marriages are to be prohibited as incestuous, we find no provision which clearly deals with the specific act of the accused in marrying his mother-in-law in the instant case. Section 457 prevents the "son" from marrying certain relatives therein mentioned. Section 458 prevents the father from marrying certain relatives therein mentioned, and provides that the like provision shall extend to females in the same degrees. It appears that the defendant is neither the father nor any other person mentioned in this statute. Moreover, the alleged offense, for which the accused was indicted, is not within the prohibitions of Section 457, supra, as to whom a man may marry.
In 14 Am. Jur., Section 19, Pages 773-774, the requisites of criminal statutes are stated as follows: (Hn 3) "The legislature, in the exercise of its power to declare what shall constitute a crime or punishable offense, must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid. If the meaning of a criminal statute cannot be judicially ascertained or if, in defining a criminal offense, it omits certain necessary and essential provisions which go to impress the acts committed as being wrongful and criminal, the courts are not at liberty to supply the deficiency, or undertake to make the statute definite and certain. If a statute uses words of no determinative meaning and the language is so general and indefinite as to embrace not only acts properly and legally punishable, but others not punishable, it will be declared void for uncertainty. It is axiomatic that statutes creating and defining crime cannot be extended by intendment. Purely statutory offenses cannot be established by implication. There can be no constructive offenses. (Hn 4) Before a man can be punished, his case must be plainly and unmistakably within a statute. A statute that either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law."
We do not think it is sufficiently clear from these statutes that the defendant was duly informed that he should avoid entering into the marriage in question, and that therefore the action of the trial judge in sustaining the demurrer to the indictment should be affirmed.
Affirmed.
Section 458, Code of 1942, is not a punitive statute, it merely defines what marriages are incestuous. Among these is the marriage of a father with his daughter-in-law. The concluding clause of the statute that "the like prohibition shall extend to females in the same degrees" can mean nothing but that, mutatis mutandis, a mother-in-law may not marry her son-in-law. As stated, this Section, however, goes no further than to characterize such relationships as incestuous. Section 2000, Code of 1942, makes it a crime for those falling within the definition of Section 458 who shall cohabit together as husband and wife. Both parties are guilty, if one is guilty.
Unquestionably the Legislature was merely trying to save time and language by the last clause of Section 458. Under our construction we have gone further and saved from prosecution all males who have entered into such an alliance, whose offense is deemed to be only that they are married to one who is forbidden to contract such marriage.