
    Case 109 — INDICTMENT
    June 14.
    Whittaker v. Commonwealth.
    APPEAL PROM OHIO CIRCUIT COURT.
    Incest — Accomplice. — Under an indictment for incest alleged to have heen committed by the defendant with his daughter the jury were authorized to convict upon the testimony of the daughter alone, as she can not he regarded as an accomplice.
    E. D. GUEEY POR APPELLANT.
    The daughter of defendant was an accomplice, and a conviction can not he had upon her testimony alone. (Criminal Code, secs. 241 and 242; Gen. Stats., chap. 29, art. 4, sec. 13; Miller v. Commonwealth, 78 Ky„ 15.)
    W. J. HENDKICK, Attorney-General, nor appellee.
   JUDGE HAZBLKIGG

delivered the opinion or the court.

The appellant was indicted, tried and convicted for the crime of incest.

He denied his guilt, aud his conviction was secured on the testimony alone of his minor daughter, the alleged victim of his lust. There was no testimony in corroboration of the daughter’s, and for this reason it is insisted that the jury should have been told to acquit.

They were in effect told that they might infer the consent of the daughter to the carnal knowledge of the father, from its long continuance without complaint from her, aud that if there was such consent, then the daughter was an accomplice, and they could not convict on her testimony alone,-unless they believed such conviction or carnal knowledge was had by the undue influence of the accused.

This instruction was more favorable to the appellant than he was entitled to. There could be no such consent as to affect in any way the guilt of the accused. The crime was committed -against the daughter. She was not the accomplice, but the victim of her father. If another had aided the father in the accomplishment of his purpose he would have been an accomplice, but not so with the daughter. She might have committed a crime also; indeed, did commit one, unless she is guilty of perjury, but it was not the same crime that the father committed. Their crimes are separable under the statute.

Judgment affirmed.  