On writ of error to Warren County Quarter Sessions.
For the plaintiff in error, Clark C. Bowers, Egbert Rosecrans and William A. Dolan.
For the defendant in error, Sylvester C. Smith, Jr.
Before Gummere, Chief Justice, and Justices Trenchard and Lloyd.
The opinion of the court was delivered by
LLOYD, J. Plaintiff in error was convicted in the Warren County Court of Quarter Sessions on an indictment in two counts; one charging the defendant with having carnal knowledge of his daughter, Catherine Hughes, on the 10th of December, 1925, and the other with making an infamous proposal with intent to commit fornication with her. The case is here on assignments of error and under the one hundred and thirty-sixth section of the Criminal Procedure act.
On this review it is contended that there was error in the rulings on the admission and rejection of evidence, in the refusal to direct a verdict of acquittal, in the instructions to the jury, and in the denial of a request for charge; also that the verdict was against the weight of the evidence.
Our examination of the rulings on evidence satisfies us that these rulings were not harmful to the plaintiff in error and that they call for no special comment.
The portion of the charge which is urgently pressed upon us as ground for reversal reads as follows:
"I might say to you in the beginning in order to make clear to you in reference to the date alleged in the indictment of the commission of the offense, the state is not bound to prove that particular day, if you are satisfied from the evidence brought before you that the crime was committed at any time within two years prior to the date alleged they have accepted the burden passed upon them."
As a statement of the law it is quite clear that the instruction was inaccurate. It is equally clear, we think, that as applied to the facts of the case the plaintiff in error was in nowise prejudiced thereby in maintaining his defense upon the merits, and this for the reason that there was in the case no proof that any illicit intercourse took place between the father and daughter at an earlier date than two years prior to the finding of the indictment, and the charge therefore must of necessity have been accepted by the jury as applicable to and within the limitations of the case as presented.
It was clearly proved that intercourse took place as a result of which the girl became pregnant in June, 1926, and she said there were other occasions prior thereto but she could not tell whether in 1924 or 1925. There was in this no proof of an offense in 1924. No conviction could be had of an offense on such date on proofs of this character, and the absolute denial of the defendant (uncontradicted in this respect) established that intercourse did not take place at a time antedating the finding of the indictment beyond the statutory period of two years. In addition it appeared that the father had the daughter examined by a physician in July, 1925, and that even at that date there was nothing wrong with her. The jury was sworn to try the case according to the evidence, and it is to be presumed that the oath was respected. There being no proof of intercourse prior to the two years antedating ...