Harold LOCKE, Plaintiff-In-Error, v. STATE of Tennessee, Defendant-in-Error.
Court of Criminal Appeals of Tennessee.
Oct. 2, 1973.
501 S.W.2d 826
Certiorari Denied by Supreme Court Nov. 5, 1973.
.. (T)he principles settled by Corlew case could be used to reach the same conclusion. In that opinion the Court said:
“‘Assessment by the jury of the punishment upon conviction is not a right reserved to the jury by the Constitution. “The right to have the jury assess the punishment was not a part of the right of trial by jury at common law.” Woods v. State, 130 Tenn. 100, at page 107, 169 S.W. 558, at page 559, L.R.A.1915F, 531 citing Durham v. State, 89 Tenn. 723, 18 S.W. 74 (1891), and cases from other jurisdictions.
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“‘It may be added that such practice (that of the Supreme Court fixing a reduced penalty when required to do so by the record before it or by law) is well established in civil cases, both in the trial Courts and in this Court, Branch v. Bass, 37 Tenn. 366 (1858); Railroad Co. v. Roberts, 113 Tenn. 488, 82 S.W. 314, 67 L.R.A. 495; and the power of the appellate courts to modify and reduce imprisonment in criminal cases, and “render such judgment on the record as the law demands,”
Code, Sec. 11810 , is quite generally recognized and exercised. See Annotations, 29 A.L.R., 318, and 34 A.L.R., 1477, 1486, 1487.’“While this Court did not apply these principles to the fullest extent it might have applied them in the Corlew case, choosing instead to reduce the penalty from a maximum sentence of three years for grand larceny to the minimum sentence of one year for petit larceny, it might have done otherwise.”
Under these principles I would reduce the punishment to one year in the penitentiary.
GALBREATH, Judge (concurring).
I concur in Judge O‘BRIEN‘s opinion.
From the facts and circumstances of this case, I would strongly recommend that the trial judge consider favorably any application on behalf of the defendant for probation. Indeed, it is my opinion, which may or may not be shared by my colleagues, that if nothing more adverse is developed by way of an investigation on the feasibility of granting a suspended sentence than what appears in the record now before us, it would be an abuse of discretion not to grant judicial clemency.
John D. Webb, James W. Bell, Robert M. Stivers, Jr., Knoxville, for plaintiff in error.
David M. Pack, Atty. Gen., Bart Durham, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Lance D. Evans, Asst. Dist. Atty. Gen., Knoxville, for defendant in error.
OPINION
RUSSELL, Judge.
Galbreath, J., dissented and filed an opinion.
Harold Locke was charged and convicted of committing a “crime against nature” as proscribed by
“A. * * * I told him I wasn‘t taking off my clothes, so I took my panties off and he made me get up on the bed, he pulled my legs apart and he started licking on me.
“Q. Did he lick?.
“A. Yes, he did.
“Q. Your private parts?
“A. (Crying) That‘s what he did.”
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“Q. You got back on the bed the second time. What did he do the second time?
“A. He opened up my legs like I said and got down right between my legs and just started licking me.
“Q. He licked your private parts again?
“A. Yes.
We hold that this language, with reasonable inferences and in the context of the other details of the attacks, made out cunnilingus.
We next confront the question of whether or not cunnilingus is an act made unlawful as a “crime against nature” by
“* * * In its narrower sense sodomy is the carnal copulation between two human beings per anus, or by a human being in any manner with a beast. In its broader sense it is the carnal copulation by human beings with each other against nature or with a beast in which sense it includes all acts of unnatural copulation. Our Courts probably accept the broader meaning since they have held that the proscribed acts may be per os as well as per anus. * * *”
Finally,
We express no opinion as to the constitutionality of the application of this statute to the private acts of married couples, a question inapplicable to the facts of this case, and not briefed herein. Nor does the case sub judice involve the application of the statute to consenting adults.
Affirmed.
WALKER, P. J., concurs.
GALBREATH, Judge (dissenting).
I must with all due respect for my colleagues in the majority point out that cursory research does not appear to substantiate the holding that “the weight of authority supports the view” that oral carressing of the vagina, or cunnilingus, is included in the acts proscribed by
“Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary not less than five (5) years nor more than fifteen (15) years.”
Less than one half of the jurisdictions in the nation have a statute such as ours1 which is a reiteration of the common law definition of sodomy. In at least two states the statute has been declared unconstitutional. See Harris v. State (Alaska), 457 P.2d 638, and Franklin v. State (Fla.), 257 So.2d 21. From a review of the many cases cited in West‘s Fifth through Seventh Decennial Digests under Key Number 1 for Sodomy, nature and elements of offenses, the courts of six states have ruled that cunnilingus is not a form of sodomy while four states seem to have adopted the view expressed by the majority.
To hold that cunnilingus (an act approved by almost 90% of adults between 18
“Since crime against nature means the common law offense of sodomy and the crime is well defined and described at common law,
T.C.A. 39-707 is not unconstitutionally vague. There is no danger that some kind of sexual perversion apart from unnatural carnal copulation, unnatural sexual intercourse, could be embraced in the definition and description as plaintiff in error contends.” Stephens v. State, Tenn.Cr.App., 489 S.W.2d 542.
Affirmation of the conviction here for a perversion that did not involve copulation or sexual intercourse, natural or unnatural, is a direct refutation of what this Court said in Stephens, supra, and points up the danger inherent in judicial legislation. Where do we stop if we decree that any form of sexual activity is the equivalent of copulation or sexual intercourse so as to be unlawful if not confined to penis-vaginal connection? Even if we had the authority to legislate on the subject, where would we draw the line? Would we go as far as has the legislature of Indiana which has proscribed masturbation or self pollution3 and thus condemn a practice that is so universally accepted now as normal under certain circumstances that the mature person who has never engaged in this type of activity would in all likelihood be considered biologically quite abnormal? I, for one, would certainly insist that such legislation proscribe, as do the Penal Codes of New York, Minnesota and Washington,4 what I personally consider the most loathsome, degrading and vile sexual activity imaginable, i. e., necrophilia or sexual intercourse with a dead body. The fact that neither of these acts, the first of which must be conceded to be rather mild and innocuous, the second of which so horrible as to be repugnant to all but the most depraved, have as yet been legislated against in Tennessee might be a source of regret to some, but still the fact exists.
Of course, the act which the defendant committed was criminal in nature and deserving of punishment. To force another person by use of a deadly weapon to engage in any activity against his or her will is an aggravated assault and quite probably a violation of our statute against threats and coercion punishable by confinement in the penitentiary for as long as five years. See
The reticence expressed by Lord Coke and the framers of our statute to deal explicitly with the offense involved is a singular departure from one of the most basic rules of criminal procedure, i. e., that an accused is entitled to be notified of just what he has allegedly done to violate the law, usually by an indictment. To hold as has the puritanical court in Illinois would not seem to even slightly conform to this long established rule of law:
“It was never the practice to describe the particular manner or the details of the commission of the act, but the offense was treated in the indictment as the abominable crime not fit to be named among Christians. . . . The existence of such an offense is a disgrace to human nature. The legislature has not seen fit to define it further than by the general term, and the records of the courts need not be defiled with the details of different acts which may go to constitute it. A statement of the offense in the language of the statute, or so plainly that its nature may be easily understood by the jury, is all that is required.” Honselman v. People, 168 Ill. 172, 48 N.E. 304 (1897).
This reasoning seems to suggest two fallacies to me. Firstly, that sodomy is the most abhorrent of all crimes, so much so that it may not even be defined in writing. Any person who believes that sodomy is more abhorrent than murder, which is sharply defined by statute, in my opinion has a misplaced sense of priority. Secondly, the attitude of the Maine Court, now adopted by the majority, seems to be “everyone knows what a crime against nature is, so why spell it out?” In the first place there have been so many disagreements as to what constitutes the offense that such reasoning falls under its own weight. (The legal paradox mentioned by the majority has not prevented some few states, at least two, from holding that while fellatio is proscribed as a crime against nature, cunnilingus is not. State v. Tarrant, 83 Ohio App. 199, 80 N.E.2d 509, and Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 637.) Secondly, if there is no need to define this offense, why should it be necessary to define every other offense in our statutes exacting penal sanctions? Are arson, rape robbery, burglary, forgery, etc. so little understood that they must be carefully defined while the never before in this State judicially encountered activity involved here is so familiar to all that one accused of committing a “crime against nature” must of necessity know what he is supposed to have done so as to be able to prepare a defense? The defendant here has the dubious distinction of being the only person in the history of this State, so far as reference to our case law is concerned, who has ever been sentenced to prison for committing this act which, as aforesaid, has been statistically attributed to some 46% of the adult population.
Cunnilingus, unlike fellatio, does not involve the virile male organ of reproduction. It would seem that it is the penis that must penetrate in order to accomplish the offense. Regardless of how loathsome
Proof of penetration is lacking.
“Penetration has been held an essential element of the crime of sodomy both at common law and under a number of the statutes defining and punishing the offense, but any penetration, however slight, is sufficient, and on penetration the crime becomes complete. The view that cunnilingus is not within the crime against nature, as discussed supra subdivision b(1) of this section, has been based on the lack of penetration of the body.” 81 C.J.S. Sodomy § 1(4).
I concur with the majority in that the marital status of the parties involved or the presence or lack of consent or force is irrelevant. The statute is completely prohibitionary, and admits of no exception by its clear terms. The age, status or condition of the parties add nothing to nor do they detract from the act of cunnilingus, except that obviously at least one of the subjects must be female.
Under the evidence the defendant is certainly guilty of an aggravated assault and battery since the proof is that he employed a deadly weapon to force his will on the prosecutrix, but under the present posture of the law in this State, in my considered opinion, he did not commit sodomy. I would reverse with a suggestion that a more appropriate prosecution be considered.