135 Va. 757 | Va. | 1923
delivered the opinion of the court.
The indictment in this case charges that the defendant, Frank Wise, “feloniously did commit the detestable and abominable crime against nature, called buggSry, by then and there feloniously having carnal copulation and intercourse with one Purnell Ross, against the order of nature, by putting his male organ into her mouth, and thereby satisfying his sexual desires and passions.”
The jury found him guilty, fixing his punishment at two years in the penitentiary, and thereupon the trial court, having first overruled a motion for a new trial, pronounced sentence upon him in accordance with the verdict.
1. It is earnestly insisted that the evidence was
2. There was a demurrer to the indictment, which the court overruled, and this is assigned as error.
The ground of the demurrer, specified at the trial and relied on here, is “that * * copulation with another human being in the manner alleged in the said indictment does not constitute the crime of buggery either at common law or as defined by the statute law of Virginia.
The statute under which the indictment was found (Code, section 4551) is as follows:
“If any person (1) commit the crime of buggery, ■either with mankind or with any brute animal, or (2) have carnal copulation in any manner with another person of the same sex, he shall be guilty of a felony and shall be confined in the penitentiary not less than one nor more-than three years.” (The figures (1) and (2) have been added by us for purposes which will herein•after appear.)
Turning, then, to this latter source of information, we find that there have been two general and conflicting-lines of authority. The first restricts the crime in question to carnal copulation between two human beings, (sometimes further restricted to males) per anum, and refuses to recognize as coming within the intendment, of buggery or sodomy such a copulation per os. Rex v. Jacobs, 1 Brit. Cr. Cas. 331; Commonwealth v. Poindexter, 133 Ky. 720, 118 S. W. 943; Kinnan v. State, 86 Neb. 234, 125 N. W. 594, 21 Ann. Cas. 335, 27 L. R. A.. (N. S.) 478; Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833; Ausman v. Veal, 10 Ind. 355, 71 Am. Dec. 331; People v. Boyle, 116 Cal. 658, 48-Pac. 800; Davis v. Broun, 27 Ohio St. 326; 2 Russ. Cr. 698; 2 Bish. New Cr. Law, sec. 1193, 1194; Min. Syn. Cr. L., p. 181 (sub-head 4e); 25 Am. & Eng. Ency. L.. (2d ed.)1145; 36 Cyc. 502; 1 Whart. Cr. Law (11th ed.), see. 754.
The other general, and in a certain sense preponderating, line of authority ascribes a wider meaning to-the term and includes therein cases of carnal copulation per os, which undoubtedly are of even greater moral!
It is clear, however, upon a close examination of these latter authorities, and a comparison thereof with the former, that this broader definition of sodomy, or buggery, has usually (though not always) been .influenced and aided by statutory provisions, and it would perhaps be more accurate to say that such statutory provisions, instead of enlarging the definition, have declared that the offense per os (so unusual and unthinkable as perhaps not to have been even contemplated in the earlier stages of the law) shall be classed, not as the same, but as a like offense, and punishable accordingly. This explanation of the wider scope apparently accorded in many modern decisions to the definition of the crime against nature is discussed in a note to the Nebraska case of Kinnan v. State, supra, in 21 Ann. Cas. 336, wherein the conclusions reached in the Illinois, Iowa, South Dakota, Wisconsin and Louisiana decisions cited supra, are shown to have been due to the statutes in those States.
If we were free to do so, we would prefer to follow these latter decisions, and hold that the offense charged in the instant case constitutes the crime of buggery, in Virginia; but we have reluctantly been
The history of the statute confirms the interpretation which we have felt constrained to place upon it. For very many years prior to the recent amendment of section 3793 of the Code of 1887 (Acts 1916, p. 511), the
We had thought, upon our first consideration of this amendment, that we might escape the interpretation we have placed upon it by assuming that the purpose of the change was to embrace, as between persons of the same sex, still other methods than per anum and per os by which the offense against nature might be committed by two human beings. Such an assumption, if reasonable, would still leave room to break away from the weight of authority (as the Georgia court could and did in the Herring Case) and hold that buggery, as a matter of common law, includes the two forms of the offense last mentioned (regardless of sex), and that the recent amendment to the Virginia statute was intended to include still other forms as between persons of the same sex. The insuperable difficulty, however, in the way of adopting this method of reasoning, and thus reaching what all must recognize as a conclusion to be desired, is that there seem to be no other ways, except the two mentioned, by which, under whatever name or phrase it may be classified, the crime against nature can be committed. To constitute the offense (of buggery or other “carnal copulation”) there must be a penetration (res in re) as in
It seems to us, therefore, that when the lawmakers, In 1916, added to our statute the words “or have carnal copulation in any manner with another person of the same sex,” they adopted, by necessary intendment, the narrow common law meaning of buggery, and then recognized (but only as to persons of the same sex) a distinct but similar offense which could only, in the nature of things, be accomplished per os.
If this conclusion is right, and we have been unable to see any escape from it, than the offense charged in the indictment, being per os and between persons of opposite sex, is not within the statute, and the court erred in overruling the demurrer. The indictment was fatally defective. The felony charged is not recognized by the law in this State, statutory or otherwise, and therefore no conviction can be had under the indictment for an attempt. No charge of assault is involved, because no force against, or lack of consent on the part of, the prosecutrix is averred. The case is
It can hardly be necessary for us to say that the subject of this opinion has been distasteful. The question involved could not, however, be brushed aside or lightly disposed of. An adequate consideration of it. seemed to require a somewhat full discussion, and we-have endeavored to meet this requirement without unnecessary indelicacy of expression, but also without prudery or idle denunciation of the act charged. This, character of evil conduct is the vice of low and depraved natures, and instances of it appear to have been notably rare in this jurisdiction.
For the reasons hereinbefore stated, the judgment, will be reversed.
Reversed..