McCaskill v. State

Citations

• 55 Fla. 117

Syllabus

<p>1. Incest is sexual intercourse between persons so nearly related to each other that marriage between them would be unlawful. At common law, incest was not an indictable offense, but was punishable in the ecclesiastical courts of England.</p> <p>2. An indictment is not fatally defective, which charges that the accused did commit the crime of incest by committing the crime of adultery and fornication in having sexual intercourse with his daughter. The allegation that the accused committed the crime of adultery and fornication is a mere conclusion and surplusage not affecting the sufficiency of the allegations of the single offense of incest.</p> <p>3. The statute defining the crime of incest does not make the knowledge by the accused of the relationship between him and the woman an element of the offense of incest, therefore it is not necessary for the indictment to allege such knowledge by the defendant.</p> <p>4. Where an indictment alleges that the offense charged was against the form of the statute, it is not essential to allege that the acts charged were unlawful or unlawfully done where that is not an element of the offense as defined by the statute. If the act charged be illegal, it would be superfluous to allege it to be unlawful; if the act charged is not unlawful, or was not unlawfully done, an allegation that is unlawful or was unlawfully done, does not render it indictable.</p> <p>5. At common law indictments for felonies should allege the acts constituting the crime to have been ‘feloniously done, but in consequence of the constitutional and statutory provisions of this State, the failure to allege that the criminal acts charged were feloniously done, does not affect the validity or sufficiency of the indictment when not required by the statute defining the offense.</p> <p>6. In the crime of incest there may be certain force or power exerted, resulting from age, relationship or circumstances of the parties, which overcomes the objections of the female