Gleason

The defendant was accused and found guilty of the crime of “an attempt to commit incest” with his daughter, aged fourteen years and seven months. On motion of defendant, the court below granted him a new trial, and this appeal is by the people from an order granting a new trial.

The evidence, without any conflict, shows that the defendant, both by solicitation and overt acts, attempted to have carnal connection with his daughter; that the attempt proceeded to the extent of contact of sexual organs, lacking only penetration, to consummate the act; and that it was without her consent and against her will and active resistance.

It appears that the new trial was granted on the ground that the crime charged could not have been committed without the consent of the daughter; and the record shows no other ground upon which the order can be sustained.

Conceding that the consent of both parties to the carnal intercourse is necessary to constitute the crime of incest, it does not follow, as contended by counsel for respondent, that a man may npt be guilty of the crime of attempting to commit incest, without the consent of the woman with whom he attempts to commit the latter crime. His…