Thompson v. Aldredge

Jan 12, 1939
No. 12632
Reporters:
,
Before:
Grice
Grice, Justice.

This record presents the question whether the crime of sodomy, as defined by our law, can be accomplished between ‍​‌‌​​‌‌​‌‌‌​‌​‌‌​​‌​‌‌‌‌​​‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌‌​​‌‌​‌​​​​​​​‌‌‍two women. By Code, § 26-5901, sodomy is defined as “the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.” Wharton, in his Criminal Law, volume 1, 11 ed., ‍​‌‌​​‌‌​‌‌‌​‌​‌‌​​‌​‌‌‌‌​​‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌‌​​‌‌​‌​​​​​​​‌‌‍§ 754, lays down the rule that “the crime of sodomy proper can not be accomplished between two women, though the crime of bestiality may be.” We have no reason to believe that our lawmakers in defining the crime of sodomy ‍​‌‌​​‌‌​‌‌‌​‌​‌‌​​‌​‌‌‌‌​​‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌‌​​‌‌​‌​​​​​​​‌‌‍intended to give it any different meaning. Indeed the language of the Code above quoted seems to us to deliberately exclude the idea that this particular crime may be accomplished by two women, although it may be committed by ‍​‌‌​​‌‌​‌‌‌​‌​‌‌​​‌​‌‌‌‌​​‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌‌​​‌‌​‌​​​​​​​‌‌‍two men, or a man and a woman. That the act here alleged to have been committed is just as loathsome when participated in by two women does not justify us in reading into the definition of the crime something ‍​‌‌​​‌‌​‌‌‌​‌​‌‌​​‌​‌‌‌‌​​‌‌‌​​​​​‌‌‌‌‌‌​‌​‌‌​​​‌‌​​​​‌‌​​‌‌‌​‌​‌‌‌‌‌‌​‌‌‌‌​​​​‌‌​​‌‌​‌​​​​​​​‌‌‍which the lawmakers omitted.

The petitioner’s conviction was a nullity and she is entitled to be discharged. Judgment reversed.

All the Justices concur.