If there are other or further provisions of law limiting, qualifying, or explaining than above quoted, they have escaped our observation. Such being the case, it needs no elucidation to show, that without the substitution of the word "affinity" for "consanguinity" or the interpolation of the word "affinity" into section 2487, the case presented in the record does not constitute a punishable offense under the statutes of our State. As much as we regret, that a man should go unpunished, if guilty, of so gross a violation of moral law, of domestic virtues, of the obligation of a citizen, and of the honor of manhood, as is charged in this case, we are left no other alternative than to reverse the action of the court below and direct the release of the accused. Until his dereliction is established by competent testimony, and the verdict of a jury, the party is entitled to the presumption of innocence, and it is to be hoped for the sake of common humanity, that this presumption is not in this instance misapplied. Whether the terms of the statutes quoted are accidental, or whether cases of this character have been so rare as not to have been regarded as requiring legislation, it is not necessary to inquire. If the truth in this instance is charged in the presentment of the grand jury, although the violation of a most sacred obligation will escape merited justice in this world, through the neglect of the law makers to provide for such a case, he can not escape the just judgment of that Higher Court, where the sins and secrets of all will be exposed and suitably adjudged. The judgment overruling the motion to release and discharge the said S. L. Chancellor from arrest is reversed, and he will be set at liberty. INCEST-STEP-FATHER AND STEP-DAUGHTER-EMISSION. NOBLE V. STATE. [22 Ohio St. 541.] In the Supreme Court of Ohio, 1872. 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. On the Trial of an Indictment for incest 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 testi mony 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. 3. Emissio Seminis is an essential ingredient in the crime of incest. ERROR to the Common Pleas of Huron County. The original case was 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 step-daughter 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, are 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. the same side. Wickham & Wildman, on F. B. Pond, Attorney-General, and G. W. Knapp, Prosecuting Attorney, for the State. 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 the 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 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. That the same words are not employed in both cases, probably arises from the fact, that in 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. What that meaning 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. For, 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. For 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 of the syllabus. MISCEGENATION-COHABITATION WITHOUT MARRIAGE - OPINION. MOORE v. STATE. [7 Tex. (App.) 605.] In the Court of Appeals of Texas, 1880. 1. Cohabitation without a Previous Marriage between a negro and a white woman is not miscegenation within the Texas statute. 2. The Opinion of a Witness that the woman " looks like a white woman" is not sufficient upon which to found a conviction. APPEAL from the District Court of Marion. The charging part of the indictment alleged that "Mary Moore, late of said county, on the 1st day of September, A. D. 1878, and in said county of Marion and State of Texas, did then and there unlawfully, knowingly, and feloniously continue, in the State of Texas and in Marion County, to cohabit with a negro, to wit, one Henry Moore, she, the said Mary Moore, having married him, the said Henry Moore, a negro as aforesaid, and she, the said Mary Moore, being then and there a white person; contrary to law, etc. No brief for the appellant. Thomas Ball, Assistant Attorney-General, for the State. CLARK, J. It is an old principle in our law of criminal pleading that an indictment should allege the facts by averments direct, positive, and certain, and not by way of argument and inference. The facts constituting the crime must be introduced upon the record by averments in opposition to argument and inference.1 Tested by this principle, we are of opinion that the indictment in this case does not come up to the required standard, and must be held too defective to sustain a conviction. In a prosecution against a white person for having knowingly intermarried with a negro, or for continuing to cohabit with such negro, within this State, after an intermarriage either in or out of this State, the fact of marriage is an essential ingredient, and must be positively averred and proved. A mere cohabitation within this State, without a previous intermarriage, does not bring the offense within the statute which was in force at the time of the alleged offense, and upon which the prosecution is based. The indictment should have averred that the defendant, being a white person, did knowingly intermarry with the negro without this State, and did thereafter remove to this State and continue to cohabit with such negro within this State; or if the marriage was con 1 Bush v. Republic, 1 Tex. 455. 2 Pasc. Dig., art. 2016. summated within this State, that fact should have been alleged, with the further allegation of continued cohabitation, if the pleader designed the latter as the basis of prosecution. While some irregularity is apparent in the proper authentication of the statement of facts, it is sufficiently authenticated by the signature of the judge to authorize its consideration as a part of the record in the cause.1 The evidence disclosed therein is not sufficient to support a conviction, and a new trial should have been awarded. Apart from the unsatisfactory character of the evidence relating to the marriage, it does not appear with any degree of certainty that the defendant was a white woman. This was an essential fact, perhaps the most essential to be established by the prosecution. To permit a female, however lowly her condition or vicious her associations may be, to suffer imprisonment in the penitentiary for two years, upon the opinion of a single witness "that she looks like a white woman,' "would be an outrage upon law and justice, which courts can not tolerate. The judgment is reversed and the cause remanded. Reversed and remanded. MISCEGENATION—WHEN CRIME NOT COMMITTED - NEGRO — MCPHERSON v. COMMONWEALTH. STEWART v. COMMONWEALTH. [28 Gratt. 939.] In the Court of Appeals of Virginia, May, 1877. 1. A Marriage between a White Man and a woman who is of less than one-fourth negro blood, however small this lesser quantity may be, is legal. 2. A Woman whose Father was white, and whose great-grandmother was of brown complexion, is not a negro in the sense of the statute. These cases were separate indictments, the one against Rowena McPherson for living in illicit intercourse with George Stewart, he not being her husband; and the other against George Stewart for living in the same way with Rowena McPherson, she not being his wife. The proofs were that they had been married; and the only question in this court was, whether she was a negro, and, therefore, the marriage illegal, 1 Bowden v. State, 2 Tex. (App.) 56. to |