
    Chinn v. The State.
    
      Incest — Section 7019, Revised Statutes, Construed — Affinity.
    Affinity is the relationship which arises from marriage between one of the spouses and the blood-relations of the other, and does not include persons related to the other simply by affinity. Therefore a husband is not related by affinity to his wife’s brother’s wife, and sexual intercourse between them, though immoral, is not an indictable offence within the provisions of § 7019 Revised Statutes.
    (Decided December 9, 1890.)
    Error to the Court of Common Pleas of Lawrence county.
    
      ■I. L. Anderson, for plaintiff in error.
    1. Is Alfred Chinn, plaintiff in error, a kin by affinity to Ann Rafferty, the wife of Thomas Rafferty, his brother-in-law ? I contend that he is not, because, Ann Rafferty is not a Hood relative of Mary Chinn, the wife of Alfred Chinn. Andrews Dictionary of Law, page 40, and cases cited. There is no affinity between the blood relations of the husband and the wife. See also Webster’s Dictionary; Winfield’s Adjudged Words and Phrases, 25.
    The connection existing between the blood relations of the husband and wife is expressed by the terms affinis, affinitas, or affinitatis. Affinitas is defined to be “ that connection arising from marriage which is neither consanguinity nor affinity.” Bou v. Law Die., 12th ed., 97. The illustration given under this definition is that, of “ the husband’s brother and the wife’s sister,” who are related, not by'affinity, but by affinitas. See also the definition of “ affinity ” in the same edition.
    Incest “ means in all eases illicit intercourse between persons within the degree of consanguinity within which marriages are prohibited by law.” Adjudged Words and Phrases, 310; Daniel v. People, 6 Mich. 386.
    Our statute has made no step in advance, and includes in the definition of incest only persons related to each spouse by affinity, that is, all the consanguinei of each spouse — if we are to be guided by what seems to be the weight of authority.
    The old statute S. & C., p. 405, specifies step-father and step-daughter, step-mother and step-son, father and daughter, mother and son, brother and sister; all cases of consanguinity or affinity according to the definitions given by Bouvier,
    In 1877 the criminal statutes were codified and the above statute as to incest was made to read as it now stands in Revised Statutes, section 7019.
    The terms consanguinity and affinity are substituted for all of the above specified cases.
    It would seem that it was the intention of the legislature to use the term affinity to include the cases specified in above statute, S. & C., p. 405 — as it has used the term consanguinity to cover the cases of consanguinity therein specified.
    The brief of defendant in error refers to the sacred refaction existing between Chinn and Ann Rafferty, but surely the relation of a first cousin is more sacred than the relation between plaintiff in error and his brother-in-law’s wife. In the veins of his first cousin flow the same amount of ancestral blood that would flow in the veins of a half brother, or half sister, and besides, the feelings of affection and the familiarity between first cousins are stronger and more intimate than those betwixt a person and his brother-in-law’s wife. Yet the statute has not made intercourse between cousins incest, nor do I think it was the policy or intention of the legislature to make intercourse, between persons related as were Chinn and Ann Rafferty, incest.
    2. It seems that the degree of relationship should be determined by counting from Chinn to his wife one, from his wife to her father and mother two, from them to Thos. Rafferty three, and from him to his wife four, being the same degree of that of a first cousin. I do not find authority to sustain this view, and only suggest it upon the ground that if wliat has heretofore been known as affinitas is to be included in the term affinity, which is not a relation by blood of either spouse but by marriage only, it seems proper to reckon the degrees through each of the parties through whom the connection is traced.
    
      Geo. W. Keye, Prosecuting Attorney, for the State.
    The section 5, S. and C. 405, defining the crime of “incest,” set out the specific persons by their distinctive names, between whom sexual intercourse was forbidden.
    While section 7019, Revised Statutes, under which the indictment in this case was drawn, provides that persons who commit adultery or fornication together, being nearer of kin, by consanguinity or affinity, than cousins, shall be imprisoned.
    Under S. and C. 405, the violation of the statute, wrought confusion in the blood relationship of those nearer of kin than cousins, and the blood relation of either the husband or wife, to wit, the step-son or step-daughter, and those only. While under section 7019, Revised Statutes, the violation of the statute works confusion in the “ marriage relationship ” or those nearer of kin by affinity than cousins, by reason of such relationship. Therefore, the definitions of “incest” and “affinity” given iii Bouvier’s Law Dictionary and under the common law do not apply to this cause and are misleading, when relied on in the construction of section 7019, Revised Statutes.
    And it seems clear to me that the legislature in the enacting of this statute, intended to extend the protecting and restraining power of the state in this class of crimes so as to preserve sacred all the relations that grow out of the marriage contract. Foot v. Morgan, 1 Hill N. Y. 654; Cain v. Jugham, 7 Cowan 478; NOTE. Edwards v. Russell, 21 Wend. 63; Stewart v. The State, 39 O. S. 153.
   Minshall, C. J.

At the May term, 1890, of the Court of Common Pleas of Lawrence county, Alfred Chinn, the plaintiff in error, was convicted and sentenced to imprisonment in the penitentiary of the state for one year, upon an indictment, found at the same-term, charging him with having committed adultery on August 10, 1879, with one Ann Rafferty; who, as is averred, was related to him by affinity nearer than cousins, both having knowledge of the relationship.

From a bill of exceptions taken at the trial, it appears that the state offered evidence and proved: “ 1st. That Mary Chinn and Thomas Rafferty are brother and sister by consanguinity. 2d. That on or about January 1, 1867, said Thomas Rafferty married Ann 'Rafferty, who has ever since been his wife. 3d. That on or about September 9, 1875, the defendant Alfred Chinn married said Mary Chinn, who has ever since been his wife. 4th. That the foregoing connection by marriage is the only relationship that has ever existed between the defendant, Alfred Chinn, and the said Ann Rafferty.” And, also, that Alfred Chinn and Ann Rafferty had intercourse with knowledge of their relation as charged in the indictment.

At the close of the testimony for the state, the counsel for the defendant asked the court to charge the jury, that if they found the facts to be as just stated, they should return a verdict of not guilty. But the court refused to do so, and charged the jury in substance that if the parties were related by marriage as stated, “ then the said Ann Rafferiy was the sister by affinity (commonly known as sister-in-law) of said defendant, Alfred Chinn, and that they were nearer akin by affinity than cousins.” f

An exception was reserved to the charge of the court and to its refusal to charge as requested; and, a motion for a new trial having been made and overruled, to which an exception was also reserved, the court sentenced the defendant to be imprisoned as before stated.

The indictment in this case was based upon the provisions of section 2, chapter 9, of the act “ to amend, revise and consolidate the statutes relating to crimes and offences ” that took effect July 1, 1877. It read as follows: “Section 2. Persons nearer of kin by consanguinity or affinity than cousins, having knowledge of their relationship, whoncommit adultery or fornication together, shall be imprisoned in the penitentiary not more than ten years nor less than one year.” (74 Laws, 279.)

Though the act containing this provision was repealed by the act of 1880, codifying the general statutes of the state, the section itself was re-enacted and carried into the revision without change in the phraseology, where it appears as section 7019, Revised Statutes; and, though the offense charged in the indictment is laid as having been committed before the repeal, yet, by virtue of section 79, Revised Statutes, the right of the state to prosecute for existing offences, was not affected by the repeal. Railroad Company v. Belt, 85 Ohio St. 479, 481.

The question then arises whether upon the proof offered by the state, the defendant is related by affinity to Ann Rafferty, that is, whether they are related as brother and sister-in-law; for, if so, then upon the authority of Stewart v. State, 89 Ohio St. 152, they are related to each other nearer by affinity than cousins.

The term affinity as used in determining the persons between whom marriage may be lawfully solemnized, and those between whom sexual intercourse is to be regarded as incestuous, has received in law by its application and use a definite signification; and we must assume that the legislature in enacting this section, defining the crime of incest, used it in the same sense. It expresses the relationship which arises by marriage between one of the parties and the blood relations of the other; but it does not include those only related by affinity to the other. As sometimes stated the consanguinei of the wife are the affines of the husband, and vice versa; but the affines of the wife are not those of the husband, nor are the affines of the husband those of the wife. 2 Stephen’s Com., 285. It is thus defined by Erskine in his Institutes, 1. b. 6. t. § 8, “ Affinity is that tie which arises in consequence of marriage betwixt one of the married pair and the blood relatives of the other; and the rule of computing its degrees is, that the relations of the husband stand in the same degree of affinity to the wife, in which they are related to the husband by consanguinity; which rule holds also, e converso, in the ease of the wife’s relations. Thus where one is brother by blood to the wife, he is brother-in-law, or by affinity, to the husband. But there is no affinity between the husband’s brother and the wife’s sister, which is called by the doctors affinitas affinitatis: because then the connection is formed, not between one of the spouses- and the kinsmen of the other, but between the kinsmen of both.” See also, 1 Bouvier’s Law Die., “ Affinity,” and the same, Brown’s Law Dictionary; 1 Am. & Eng. Enoy. of Law, 815 and notes ; 1 Bl. Comm. 435, Christian’s note. In the note just cited it is said, “ though a man is related to his wife’s brother by affinity, he is not so to his wife’s brother’s wife, whom, if circumstances would admit, it would not be unlawful for him to marry,” and hence intercourse between them, however immoral, would not be incestuous.

The section of the crimes act defining and punishing incest prior to the revision of 1877, simply designated the persons, by the relationships in which they stood, between whom sexual intercourse was punished as an offense (S. & C., 405) ; and it will be perceived that those arising from marriage, as step-father and step-daughter, step-mother and step-son, siipT ply included cases of intercourse between one party to the marriage and a blood relative of the other, following as far as it went, the established rule for the determination of relationship by affinity; and we see no reason for supposing that the legislature in its revision of the crimes act, intended to depart from this general rule, and establish a kind of relationship by marriage unknown to the law. The fact that more remote degrees of such relationship are included, argues nothing, as effect can be given to this extension, without departing from the principle upon which relationship by affinity is determined.

It then appears that, upon the proof offered by tbe state, the defendant should have been acquitted, and the court erred in charging as it did. There is no relation by affinity nor consanguinity between the defendant and Ann Rafferty; she ■ is simply an affinis and not a consanguineus of Mary .Chinn, the defendant’s wife; or, in other words, she is simply the wife of the defendant’s wife’s brother, Thomas Rafferty.

The case is clearly distinguishable from that of Stewart v. State. The case is briefly reported, but an examination of the record on file, shows that Etta Drake, with whom the offense was committed, was the sister of the defendant’s wife ; and, therefore, related to him by affinity, because related to his wife by consanguinity.

The indictment does not charge any other offense than that of incest, as it is not charged that the defendant cohabited with Ann Rafferty in a state of adultery; and, since it appears from the proof offered by the state that the defendant is not guilty of the offense charged, the judgment should be reversed and the defendant discharged.

Judgment accordingly.  