On appeal from a judgment of the Supreme Court, whose opinion is reported in 123 N.J.L. 335.
For the plaintiff in error, David I. Stepacoff.
For the state, Charles M. Morris, Prosecutor of the Pleas.
The opinion of the court was delivered by
HEHER, J. The judgment is affirmed, for the reasons expressed in the opinion of the Supreme Court, save as herein modified.
It is assigned for error that the Middlesex Quarter Sessions refused to arrest judgment on the grounds (a) that the indictment "fails to charge the commission of the crime for which he was sentenced and therefore the conviction was illegal and unconstitutional," and (b) that sections 2:139-1 and 2:139-2
of the Revision of 1937 "are so conflicting as far as a parent is concerned, as not to permit him to be reasonably apprised of the nature and cause of the accusation against him and therefore they are in contravention of the New Jersey Constitution."
In brief, the argument is that "defendant was indicted for the crime of incest which is a crime defined by" section 2:139-1, providing that "Persons who shall intermarry within the degrees prohibited by law, or who, being related within such degrees, shall together commit fornication or adultery, shall be guilty of incest, and punished by fine not exceeding one thousand dollars, or imprisonment at hard labor not exceeding five years, or both;" that, parent and child being within the "degrees prohibited by law" (R.S. 1937, 37:1-1), "the crime set forth in the indictment comes within" section 2:139-1, since "the act with which the defendant is charged is that he did 'incestuously have carnal knowledge' of his daughter's body" -- the "connotation" being "incest" under section 2:139-1. The insistence is that section 2:139-2 defines the crime of "incestuous conduct" as including sexual intercourse between parent and child; and that "it is evident that the defendant was charged with the crime of 'incest' and was sentenced for 'incestuous conduct,' a crime carrying a greater penalty." It is pointed out that the indictment was endorsed "For Incest;" and it is contended that "this, without question, places the indictment under" section 2:139-1, and therefore there was error in the imposition of sentence as for a high misdemeanor under section 2:139-2.
The Supreme Court ruled that section 2:139-1 "covers incest only," and section 2:139-2 "concerns not only incest but incestuous conduct;" that the indictment "was for incestuous conduct under" section 2:139-2, since plaintiff in error "was not charged with incest but with incestuous conduct in that he did 'incestuously have carnal knowledge of the body of his said daughter.'"
Section 2:139-2 denounces no such crime as "incestuous conduct" eo nomine. Both sections interdict incest (although the second includes kindred offenses short of incest itself);
and the indictment charges only that. Carnal knowledge is an ingredient of ...