
    Harvey Noble v. The State of Ohio.
    1. The relation of step-father and step-daughter, within the meaning of the statute against incest, does not exist after the termination of the marriage relation between the step-father and the step-daughter’s mother.
    2. An indictment for incest with one’s step-daughter sufficiently describes the relationship of the parties, by alleging it to he that of step-father and step-daughter, without setting forth the marriage of the defendant to the mother, or the subsistence of the marriage relation at the time of committing the crime.
    S. On the trial of such an indictment against the step-father, it was shown that-the step-daughter’s mother had been twice married before her marriage with the defendant; first, to a man by the name of Norwood, and next to a man by the name of Hopkins; and there was evidence tending to raise a presumption of the death of one or both of these former husbands. The court thereupon charged the jury as follows; “ If the presumption arises that Norwood or Hopkins, or both of them, are dead, the subsequent marriage with Noble ” (the defendant) “ would be valid, unless from the testimony you should find that in fact they, or one of them, are not dead.” Held, that in this charge there was error, for which the judgment should be reversed.
    4. Emissio seminis is an essential ingredient in the crime of incest. ,,
    Error to the Common Pleas of Huron county.
    The original case was an indictment for incest. It charges that the plaintiff in error had sexual intercourse with one Adelia A. Hopkins, his step-daughter, knowing her to be such step-daughter; but it does not specially allege the marriage of the plaintiff in error to Adelia’s mother, or otherwise show how the said relation of stepdaughter and step-father was created ; nor does it specially set forth the fact that the marriage relation was still subsisting at the time of committing the crime. And it is assigned for error now that the indictment is in this respect insufficient.
    On the trial of the cause, it was shown that Adelia’s mother had been twice married before her marriage with the plaintiff in error, the name of her first husband being Norwood, and that of her second husband Hopkins; and there was evidence tending to show the death of one or both of these former husbands, or tending to raise a legal presumption of their death. The court thereupon, among other things, charged the jury as follows : “ If the presumption arises that Norwood or Hopkins, or both of them, arc dead, the subsequent marriage with Noble would be valid, unless from the testimony you should find that in fact they, or one of them, are not dead.”
    The court also instructed the jury that emission was not a necessary element in the crime of incest.
    To each of these instructions the plaintiff in error took exception, and he now assigns them for error.
    
      There are numerous other assignments of error upon the record, but it is unnecessary to notice them here, further than to say that they were not sustained by the court.
    
      Cooper K. Watson, for plaintiff in error:
    1. Under Ohio statutes, in both incest and rape, coition must be complete, or the crime is not committed. That such is the law in regard to rape is settled by Williams v. The State, 14 Ohio, 222, and Blackburn v. The State, 22 Ohio St. 102. The terms “ carnal knowledge” and “sexual intercourse” are synonymous. Hence, those decisions apply as well in case of incest. The gravamen in rape is the forcible penetration against the will of the female; in incest, committed by willing parties, the whole offense is in the coition.
    
    2. Is the indictment sufficient? We think not. The relation between Adelia’s mother and the defendant should have been averred as continuing and subsisting at the time of the act charged; for, upon the then existence of that relation, the guilt or innocence of the defendant turns. Blodget v. Brinsmade, 9 Vt. 27; State v. Shaw, 3 Iredell (N. C.), 532; Goodall v. Thurman, 1 Head, 200.
    
      Wickham $ Wildman, on the same side:
    1. The court erred in charging the jury, in substance, that, “if the death of either one of the former husbands of Mary Jane Noble is proved, her marriage with the defendant was valid.”
    
      F. B. Pond, Attorney-General, and G. W. Knapp, Prosecuting Attorney, for the State:
    1. The indictment is sufficient. Bergen v. The People, 17 Ill. 426; People v. Jenness, 5 Mich. 395; Bishop on Statutory Crimes, 734, 736.
    2. The words “carnal knowledge,” in sections 4, 5, and 6 of the crimes’ act, and the words “sexual intercourse,” in section 8, were placed in the act-by the same minds, at the same time. It is therefore presumable that it was not intended to convey the same meaning by the two terms. See also Webster’s definition of “ intercourse” and “ sexual intercourse.” It is fair to presume that the legislative intent was to punish undue familiarity or “commerce” between parties related, as set forth in section 8.
   Welch, J.

The objection to the indictment is not well taken. It is established law that the relation of step-father and step-daughter, at least within the meaning of statutes against the’ crime of incest, terminates with the death or divorce of the mother. To aver the relation of step-father and step-daughter is therefore, and necessarily, to aver the marriage of the mother to the step-father, and the subsistence of the marriage relation at the time in question. This is the legal import of the terms. They must have the same meaning in the indictment as in the statutes. No amplification, or special definition of the relation, can make it more certain, or give additional notice of the particular facts to be proven at the trial. The case is one of those where the pleader may safely and properly adopt the language of the statute describing the offense, as appears to have been done in the present instance.

It remains to inquire whether the court erred in its instructions to the jury. In that part of the charge relating to the death of the mother’s former husbands, we see no way of avoiding the conclusion that there is error. The court, in effect, charged the jury, that if either of the two former husbands of the mother was dead, or presumed to be dead, her subsequent marriage to Noble would be valid. This is undeniably bad law, and could never have been intended by the court. But it is so written in the record, and to that alone we can look.

As to the other branch of the court’s instructions, we have much more difficulty in deciding. Were it an open question in this state, whether emission is necessary to constitute the crime of rape, it is not at all unlikely that we should feel constrained to decide it in the negative. It is not, however, an open question; and it would seem only necessary, therefore, to inquire whether the statutory words defining the sexual act, in the case of incest, are so variant from those employed in the case of rape as to import a. different meaning. The statutory words, in the case of rape, are “ carnal knowledge,” and in the case of incest,. “ sexual intercourse.” It seems to us that they are equivalents of each other. Tbat the same words are not employed in both cases probably arises from the fact that iru one case the act is committed by a single person, while in the other it is the act of two. We are unable to see on what ground it can be held that “sexual intercourse”' means less than “ carnal knowledge.” Being equivalents, they should be held to have the same meaning. Whatthatmeaning should be, is perhaps not so important as it is that-the meaning should be settled and fixed one way or the-other, and by decisions which are consistent with themselves. No great mischief need be apprehended from holding this element essential in cases of incest. Eor, it must be remembered, the crime of incest is committed by two-willing parties; and therefore, in ninety-nine cases out of a hundred, the act will be consummated. It must be-remembered also, that in that hundredth case, as in all others, the fact in question will be presumed from the other-necessary acts preceding it, and must be found to exist-unless the contrary is shown by the evidence.

Eor the reason that the court erred in these two respects in its charge to the jury, the judgment must be reversed* and the cause remanded.

Stone, J., dissented as to the last proposition in the syllabus.

Judgment reversed, and cause remanded for further proceedings„  