Court of Criminal Appeal
| Published date | 01 April 1940 |
| Date | 01 April 1940 |
| DOI | http://doi.org/10.1177/002201834000400205 |
| Subject Matter | Court of Criminal Appeal |
Court
of
Criminal
Appeal
THE RULE IN
RUSSELl.
V.
RUSSELL
IN RELATION TO
MENS
REA
R.
v. Carmichael
IN
what circumstances can husband or wife. in order to
rebut acriminal charge. give evidence tending to bastardize
children born after the marriage?
This
question was raised
for the first time in the case of John Kinnear Carmichael.
whose appeal upon aconviction for incest with his daughter
came before the Court of Criminal Appeal (Charles. Mac-
naghten, and Oliver JJ.) on the r
rth
February of this year.
It
will be remembered that in Russell v. Russell (1924,
A.C.
687) the House of Lords held that the rule did not, as had
been commonly thought, merely apply to legitimacy pro-
ceedings, but, to use the words of
Lord
Birkenhead in that
case, " is not limited to any special class of case.
It
is absolutely
general in the comprehensiveness of its expression."
The
present appellant was tried at the Central Criminal
Court before Wrottesley J. on an indictment charging him
with having committed incest with his daughter Sonia May
Carmichael contrary to subsection
(I)
of section 1 of the
Punishment of Incest Act, 1908, which is in the following
terms
:-
" Any male person who has carnal knowledge of a
female person who to his knowledge is his granddaughter,
daughter, sister or mother shall he guilty of mis-
demeanour. . . ."
The
facts proved at the trial were that the appellant
first married in September, 1912. A daughter was born in
1913. In 191{ the wife went to live at Cambridge whilst
the appellant spent most of h s time in London. Whilst she
was at Cambridge the wife became friendly with a man
called West.
In
January, 1915, the appellant enlisted in the
Army. In May, 1915, Sonia May Carmichael was born.
198
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