Summary
In People v. Bord (243 N.Y. 595) defendant urged that the existence of a specific statute covering the exact act with which he was charged prevented a prosecution for the felony under the more general statute.
Summary of this case from People v. FlorioOpinion
Argued October 5, 1926
Decided October 12, 1926
Appeal from the Supreme Court, Appellate Division, Fourth Department.
Charles D. O'Brien and Thomas J. Lowery for appellant.
Clarence Unckless, District Attorney ( William C. Martin of counsel), for respondent.
Under a statute which declares intermarriage between persons related within the prohibited degrees to be incest it has been held that the offense becomes complete upon intermarriage and that to sustain a conviction it is not necessary to establish carnal knowledge. Such statutes are common. "It is entirely competent for the Legislature, upon declaring an act to be a crime, to designate it by any term that may be chosen for that purpose." Intermarriage is the act of marrying. ( State v. Schaunhurst, 34 Iowa, 547; Hintz v. State, 58 Wis. 493.)
The provision in the Domestic Relations Law, § 5, subd. 3 (Cons. Laws, ch. 14) making the parties to an incestuous marriage punishable for a minor offense merely creates another crime, applicable to marriages where there is no incestuous connection. It cannot be said to be exclusive without changing the meaning of the word "intermarry" in Penal Law, section 1110, as defined above.
The district attorney may prosecute for the felony or for the misdemeanor as he chooses. The elements of the crime are the same.
The judgment should be affirmed.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgment affirmed.