179 Ind. 459 | Ind. | 1913
As the result of a trial by the court, without the intervention of a jury, appellant was adjudged guilty of sodomy and was sentenced to an indeterminate term of imprisonment in the State prison of not less than 2 nor more than 14 years and to pay a fine of $100. Appellant was without means to employ counsel and the trial court appointed
There can be no doubt of the soundness of the general rule that penal statutes are to reach no further in meaning than the fair and plain import of their words and that acts within the mischief and reason but not within the letter are to be excluded. But the crime of sodomy has always been deemed a very pariah of crimes and the acts constituting it but seldom specifically defined. There can be no doubt that many of the definitions are amply broad to include the act in question. The earliest mention of it in the laws of England may be found in 2 Rotuli Pari. 50 Edward III, No. 58 (1376) p. 332 where it .appears that a complaint was made
The original authority for the statement found in textbooks and some American cases that the act involved in this case is not within the common-law definition of the crime, is the case of Rex v. Jacobs (1817), 1 Rus. & Ry. 331. The report of the ease is exceedingly short and gives no reason for the conclusion reached. It, alone, has led a number of text-books on criminal law to make the statement that “to constitute the offense the act must be in that part where sodomy is usually committed.” 9 Bacon, Abridgment 160; 1 Russell, Crimes, (7th Eng. ed.) 976. This very statement, however, is a concession that the offense is sometimes, if more rarely, committed in other ways and justifies the broader and more comprehensive common-law definitions which we have set out. The ease of Rex v. Jacobs, supra, stands alone in England on the question and no other expression of the courts of that country can be found to limit the broader definitions of the offense given by the great writers on the common law. In view of this fact we think we are left free to conclude that our legislature, when it passed the act of 1905, §2374 Burns 1908, supra, chose rather the broad definition of the crime, which would include those abominations within the mischief of the law, rather than the narrow one which without reason would exclude from punishment a perpetrator of what might well be considered the vilest and most degenerate of all the acts within
The decisions in this country on the question are not harmonious. The courts of a number of states have, some of them apparently with little consideration, followed the case of Rex v. Jacobs, supra. See Prindle v. State (1893), 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. 833; People v. Boyle (1897), 116 Cal. 658, 48 Pac. 800; Commonwealth v. Poindexter (1909), 133 Ky. 720, 118 S. W. 943; Kinnan v. State (1910), 86 Neb. 234, 125 N. W. 594, 27 L. R. A. (N. S.) 478 and note, 21 Ann. Cas. 335 and note. The conclusion we have reached in this case is in harmony with a number of well-reasoned cases in other states. Herring v. State (1904), 119 Ga. 711, 46 S. E. 876; White v. State (1911), 136 Ga. 158, 71 S. E. 135; Honselman v. People (1897), 168 Ill. 172, 48 N. E. 304; Kelley v. People, supra; State v. Whitmarch, supra. See,
In the well-considered case of State v. Whitmarsh, supra, in commenting on the reason given by certain writers on criminal law for the decision in Rex v. Jacobs, supra, that, “to constitute this offense, the act must be in that part where sodomy is usually committed,” it is said: “The mere statement of the above reason shows the unsoundness of sueh a distinction. It concedes that the act is sometimes committed in some other part, and, by conceding that the act committed in such other part is not the usual offense, the statement concedes that the act, if committed in such other part, would be still more unnatural, because if not more unnatural, it would not be more unusual. Certainly this unusual act is many times more ‘detestable and abominable’ than that made criminal at common law. As was well said by the court in State v. Vicknair, 52 La. Ann. 1921, 28 South. 273: ‘But why in the common law courts the use of the month should not have been considered as much against nature as though the act were committed per anum is incomprehensible.’ ”
The judgment is' affirmed.
Note.—Reported in 191 N. E. 629. Reported and annotated in 45 L. R. A. (N. S.) 473. See, also, under (2) 12 Cyc. 141.