86 Neb. 234 | Neb. | 1910
Jess Kinnan, hereafter called the defendant, was tried in the district court for Antelope county iipon the charge of committing the infamous crime against nature, defined in section 205® of the criminal code by penetration per os. He was convicted, was sentenced to the penitentiary 'for a term of ten years, and has brought the case here for review.
Before going to trial, defendant, by motion and demurrer, challenged the sufficiency of the information on the ground that the facts set forth therein did not constitute a violation of the section of the criminal code above cited, and now strenuously renews that contention. The identical question here presented has been- deter
From the foregoing it clearly appears that the ruling-in that case is of no assistance to us in the case at bar. Counsel, however, ask us to adopt the extraordinary language of the Wisconsin court that “there is sufficient authority to sustain a conviction in sxch a case, and, if there Avere none, we Avould feel no hesitancy in placing an authority upon the books.” We cannot approve of this language. There is no doubt but that the Wisconsin case was correctly decided, and it Avas unnecessary for the court to use the language above quoted. It is not Avithin the poAvers of the judicial branch of the government to place rules upon the books, or enact laws to define or punish crime. Those matters are wholly Avithin the province of the legislature, and we are satisfied that the Wisconsin court did not intend its language to be understood as it is now interpreted by counsel for the state. In the Illinois case it appears that the legislature of that state, as a part of its criminal code (section 279), enacted the folloAving: “Every pex-son convicted of the crime of murder, rape, kidnapping, wilful and corrupt perjury or subornation of perjury, arson, burglary, robbery, sodomy, or other crime against nature, incest, larceny, forgery, counterfeiting, or bigamy, shall be deemed infamous”, etc. So it seems clear that the decision of the Illinois supreme court turned upon the particular definition of crimes given by the statutes of that state.
Our statute fails to define the manner in which the infamous crime against nature may be committed, and it is therefore apparent that, when the legislature passed the section of our criminal code here in question, it had in mind the usual or common law definition of that crime, and as the acts charged in the information do not fall within that definition they must be held insufficient to constitute the infamous crime Avithin the meaning of that section. Again, we have frequently held, and it is now set-
Defendant also contends that the evidence is insufficient to sustain the verdict because of the failure of the state to identify him as the person who committed the act in question. Without deciding this question, we deem it proper to say that the record contains no positive evidence connecting him with the commission of the offense. The prosecuting Avitness was not sure that he was the man who assaulted her. She said that the man had a cloth over his face, and that he was shaped or built like the defendant, and she thought it was the defendant.
It is further contended that the trial court erred ip
For the foregoing reasons, the judgment of the district court is reversed and the cause is remanded for further proceeding's.
Reversed.