People v. Womack

HERNDON, J.

The sole question posed by this appeal is whether an admitted act of sexual intercourse between defendant and the 14-year-old daughter of his half-sister was

[131]

incestuous under section 285 of the Penal Code: “Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison not less than one year nor more than fifty years.”

Section 59 of the Civil Code provides: “Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate. ’ ’

The essence of defendant’s argument, as stated in his opening brief, is as follows: “An ordinary reading of Civil Code, Section 59, leads counsel to the conclusion that ‘half-uncle’ and ‘half-niece’ are not included in the language. The words ‘of the half as well as the whole blood’ clearly apply to the words ‘brothers and sisters’; they clearly do not apply to ‘uncles and nieces.’ In such case, where ‘half-bloods’ are mentioned as to one class of persons and not mentioned as to another class, it seems clear that ‘half-bloods’ are not covered as to the latter class.”

Defendant seeks to invoke the rule that where the language of a penal statute is reasonably susceptible of two constructions that construction which is more favorable to the accused will ordinarily be adopted.

(People

v. Valentine, 28 Cal.2d 121 [169 P.2d 1].)

Although the question here presented has not been decided in any reported California decision, the great weight of authority is adverse to defendant’s contention. We are in accord with the prevailing view that the statutory prohibition applies to the relationship here involved. By definition, an uncle is a brother of one’s father or mother, and no distinction is made between the whole and the half blood according to common and ordinary usage. (Black’s Law Dictionary, 4th ed.; The Oxford English Dictionary, vol. 11, p. 86.) In referring to himself as the “half-uncle” of the victim of his act, defendant employs a misnomer; it is a term unknown to common usage.