Opinion
No. 4618.
Submitted November 5, 1957.
Decided November 26, 1957.
1. An indictment reciting that the respondent committed the crime of incest with his named minor daughter on or about a particular date was held to have set forth the crime accurately and with sufficient definiteness to enable him to prepare for trial although the minor child was in fact his wife's daughter whom he had adopted. RSA ch. 461.
2. The statutes prohibiting marriage between a man and his wife's daughter (RSA 457:1) as incestuous (Ib., s. 3) and providing a penalty for "all persons within the degrees of consanguinity or affinity in which marriages are prohibited or declared by law to be incestuous, who shall . . . carnally know each other" (RSA 579:7) evidence a clear purpose to forbid the act of sexual intercourse between a man and his wife's daughter.
3. A respondent charged with incest with his wife's minor daughter was held not entitled to take advantage of the constitutional right of the minor child to refuse to testify to self-incriminating matters concerning her relations with him.
4. The rights of a witness may not be determined on a transfer of the respondent's exceptions in a criminal case to the Supreme Court.
INDICTMENT, charging the defendant with incest on or about September 18, 1956, with his minor daughter who was named in the indictment. He waived his right to a jury (RSA 606:7) and was tried by the Court which found him guilty. After the State's opening statement, the defendant moved that the indictment be quashed, that he be discharged and excepted to the denial of his motion. During the trial he excepted to the admission and exclusion of evidence and to the Court's permitting the minor child to testify on behalf of the State. The facts appear in the opinion. Reserved and transferred by Keller, J.
Louis C. Wyman, Attorney General, and William J. Deachman, Assistant Attorney General, for the State.
Craig and Craig for the defendant.
William H. Craig, Jr. for the motion.
The defendant's claim that the indictment was insufficient and should have been quashed rests on the sole ground that it alleged commission of the crime of incest with the defendant's daughter "while the State proved that the crime was [committed] with his stepdaughter." Since incest was not a crime at common law (42 C.J.S., Incest, s. 1 b), the question whether the indictment was proper is one of statutory interpretation. The controlling enactments so far as material read as follows: "No man shall marry his . . . wife's daughter . . . ." RSA 457:1. "Every marriage . . . within the degrees prohibited . . . is incestuous and void . . . ." RSA 457:3. "All persons within the degrees of consanguinity or affinity in which marriages are prohibited or declared by law to be incestuous, who shall . . . carnally know each other, shall be fined . . . or imprisoned . . . ." RSA 579:7 (Emphasis supplied). It appears clear that the purpose of these laws was not only to protect society against the evils of inbreeding but also against the socially and morally undesirable consequences of sexual relations under any circumstances between persons within the prohibited degrees of relationship. The use of the broader word "affinity" in addition to "consanguinity" is a plain indication that the Legislature intended to extend the prohibition beyond certain blood relationships to include persons, within specified degrees, who were related by marriage. The definition of affinity is "Relationship by marriage between a husband and his wife's blood relations." Webster, New International Dictionary (2nd ed. 1952), p. 43. See also, Bouvier, Law Dictionary (Rawles 3rd rev.) pp. 159, 160; Commonwealth v. Wood, 302 Mass. 265, 268.
We believe the indictment with its description of the child as the defendant's "daughter" set forth the crime accurately and with sufficient definiteness to enable him to prepare for trial, which is all that he is entitled to expect. State v. Ellard, 95 N.H. 217, 220; State v. Ball, 101 N.H. 62. Cases in other jurisdictions depending on different statutes and policies are not controlling here and the exception to the refusal of the Court to quash the indictment is overruled.
The defendant's final exception is to the ruling permitting the minor child to testify to self-incriminating matters concerning her relations with him. N.H. Const., Pt. I, Art. 15th. His difficulty is that he is in no position to take advantage of the constitutional rights of others. State v. Desilets, 96 N.H. 245, and authorities cited. VIII Wig. Ev. (3rd ed.) s. 2270.
Exceptions overruled.
All concurred.
ON MOTION FOR REHEARING. After the foregoing opinion was filed the defendant moved for rehearing upon the ground that the opinion failed to consider an exception allowed to the mother and natural guardian of the minor child. The exception was to a ruling which sustained objection to presentation by the mother, on behalf of the minor, of a claim of a privilege under Art. 15th, Part I, of the New Hampshire Constitution not to give testimony which might tend to incriminate the witness.
The law is well settled that a "witness is no legal party to the prosecution" (State v. Flynn, 36 N.H. 64, 69) and has no right which may be determined on review in the criminal action. "The only matter which a court of criminal appeals can review is whether error was committed against the accused, and, if so, whether the error was prejudicial." 3 Am. Jur. 414. See also, Hadlock, Petitioner, 142 Me. 116; 4 C.J.S. 543. If there was any violation of the witness' rights, protection may be afforded her should her testimony be offered against her. See 58 Am. Jur. 54, Witnesses, s. 55. Her rights must be adjudicated in other proceedings. Id., p. 72. See Beauvoir v. State, 148 Ala. 643, 653.
Motion denied.
December 31, 1957.