State v. McGruderState v. McGruder
- Reporters:
- ,
- Before:
- Ladd
Tbe definition of the statute is broader than that of sodomy as understood at common law. Prindle v. State, 31 Tex. Cr. R. 551 (21 S. W. Rep. 360, 37 Am. St. Rep. 833). But it is quite as detestable and no less a disgrace to human nature, and precisely the same reasons for not entering into detail, in describing it, still exist. The indictment informed the defendant that he was accused of a crime against the order of nature, and named the person with whom he was charged with having committed it. This was enough to enable him to prepare his defense, and the judgment when entered may be pleaded in bar to another prosecution. In Commonwealth v. Dill, 160 Mass. 536 (36 N. E. Rep. 472), the court held that to allege that the accused “ did unlawfully and feloniously commit a certain unnatural and lascivious act ” with a named person, in following language of the statute, was sufficient, even though any mode of unnatural copulation, not coming within the definition of sodomy as usually defined, was intended by the Legislature. In Honselman v. People, 168 Ill. 172 (48 N. E. Rep. 304), the statute, denouncing a penalty against “ every person convicted of sodomy or other crime against nature,” was held to include any act which might be condemned under the statute of this State, and an indictment charging that defendant had committed “ the infamous crime against nature upon and with Lloyd Kesler, a man then and there being,” was upheld as against precisely the same criticism urged in the instant case. Tn the course of the opinion the court said.
The statute gives no definition of the crime, which the law, with due regard to the sentiments of humanity, -has always treated as one nbt fit to be named. It was never the practice to describe the particular manner or 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 *744to. human nature. The Legislature lias 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 the 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.
These views were subsequently approved by the same court in Kelly v. People, 109 Ill. 119 (61 N. E. Rep. 425, 85 Am. St. Rep. 323). There is no reason for thinking courts of the present day less sensitive than their Anglo-Saxon predecessors. The same grounds still exist for excluding the details of the detestable crime, in so far as possible, from the public records, and we think that i^ is described with sufficient definiteness to answer every purpose when charged in the language of the statute.
Tbe unsoundness of tlie contrary opinion is emphasized by the enactment of statutes both in England and in many of the States, including this, eliminating the necessity of such proof in cases of rape. There is even less ground for exacting it in establishing the crime against nature, for “ the enormity of the offense,” as was observed in State v. Vicknair, 52 La. Ann. 1921 (28 South. Rep. 273) “ consists solely in its utter bestiality.” In that case the manner of the offense was as in this, and the court held that emissio seminis was not an essential element of the crime. The same conclusion was reached in White v. Com., 24 Ky. 2349 (73 S. W. Rep. 1120). See 1 McClain’s Crim. Law, 450. See, contra, People v. Hodgkin, 94 Mich. 27 (53 N. W. Rep. 794, 34 Am. St. Rep. 321). That there may be “ camal copulation ” without consummation of all that’ intended seems too evident for argument, and we are content with holding, without farther elaboration, that proof of res in re, without more, is sufficient to justify conviction.
Of course, a witness may not be asked whether in his opinion the accused is responsible for the act committed, or whether such was the result of an insane delusion. People v. Thurston, 2 Parker, Cr. R. 49, 134; Patterson v. State, 86 Ga. 70, 12 S. E. Rep. 175. The mere fact that the jury will necessarily pass upon an issue does not necessarily render the inquiry of a witness improper; otherwise, experts on handwriting might not express their opinions of the genuineness of a controverted signature, nor would nonexperts familiar with a party’s handwriting be allowed to testify whether that in issue is genuine. In .‘contests over the execution of wills experts are not permitted to answer questions *748wliiob embrace the whole merits of the case. In re Brett’s Estate, 113 Iowa, 111. The ground for such rulings is that whether the deceased possessed sufficient capacity to execute a will is a mixed question of law and fact. But an inquiry as to’ the degree or extent of mental impairment calls for a statement of fact only. Opinions as to the condition of the mind are received to aid the jury in determining the mental capacity of the accused, and even if limited to categorical statements of sanity or insanity, soundness or unsoundness, the answers, if of any value inferentially or actually, cover or‘include the issue to be passed upon by the jury. Of course,-a nonexpert may not express an .opinion concerning mental condition of the subject of .investigation save at the times of his ■ observation, and the question propounded to MeGrfidef was so limited; but an expert, as Dr. Carton appeared to be, may be permitted to express his opinion, not only of -the Condition of the mind at the time of the examination or that fixed by the hypothetical question, but concerning its.-probable duration, .past and future, and whether it existed oh a particular day.