194 Ind. 221 | Ind. | 1923
Appellant was indicted, tried and convicted in the court below of an alleged felonious conspiracy to commit a felony. This indictment was predicated on §§2647 and 2374 Burns 1914, Acts 1905 p. 584, §§641, 473. His motion for a new trial was overruled and judgment of imprisonment in the Indiana Reformatory. From this judgment, appellant appealed to this court. The overruling of his motion for a new trial is the only error assigned. In support of his motion, he relies entirely on insufficient evidence to support the decision of the court, and that such decision was contrary to law.
Appellant has asked for an oral argument. He has briefed his case thoroughly. He has clearly stated the questions and his position in relation thereto. Nothing will be gained by an oral argument, and his petition, therefore, is denied.
The indictment charges the felony in the words of the statute. Section 2374* Burns 1914, swpra, provides that “Whoever commits the abominable and detestable crime against nature with mankind or beast; or whoever entices, allures, instigates or aids any person under the age of twenty-one years to commit masturbation or self-pollution, shall be deemed guilty of sodomy,” that is to say, “Whoever commits * * *; or whoever entices, etc.,” is guilty of the same offense, sodomy, and in either case, on conviction, subject to the same penalty.
The unquestioned indictment in the instant case was in one count, charging a conspiracy to commit a felony, as defined in the second clause of what is known as the sodomy statute. The evidence also makes a case which
Appellant, in support of his first contention, cites and relies largely upon the case of Sherrick v. State (1906), 167 Ind. 345, wherein it is said, p. 534, “we are not permitted to extend a statute to those [offenses] within the mischief, but not within the purview. In other language, an offense not within the words cannot be adjudged a crime because within the reason”. We quite agree with appellant that statutes defining criminal offenses are, as a general rule, to be strictly construed to avoid the creation of penalties by construction. Groff v. State (1908), 171 Ind. 547, 17 Ann. Cas. 133; State v. Terre Haute Brewing Co. (1917), 186 Ind. 248. However, this principle, well settled as it is, does not prohibit a reasonable interpretation of legislative language for the purpose of determining its design or object. If it thereby appears that the evil to be remedied is characterized by words, sufficiently comprehensive to cover the legislative intention, without resorting to implication, they will be regarded as adequately defining the offense intended. State v. Goodwin (1907), 169 Ind. 265; State v. Shanks (1912), 178 Ind. 330; State v. Fairbanks (1917), 187 Ind. 648.
The obvious purpose of the last clause of the statute was to strengthen the law prohibiting unnatural sexual
Courts, in passing on legislative enactments, from whatever position attacked, will assume that the lawmakers used words and language advisedly and expressive of their intention. Looking to the general accepted definition of the words here in question, we learn that the word “masturbation” is defined as self-defilement, onanism. “Defilement” is defined as uncleanness; impurity; corruption of morals or conduct. “Onanism” — gratification of the sexual appetite in an unnatural way. The word “pollution” is defined as the act of polluting; the state of being polluted; and the word “pollute”, to corrupt or defile in a moral sense. Century Dictionary, 1913 ed.
We thus have the words of the statute and their meaning. The only thing left for the court to do is to sensibly apply them as their purposed use in the statute would indicate. This done, they not only cover the thought asserted by appellant, but they have a wider meaning, the corruption of morals, the disgrace of human nature by an unnatural sexual gratification, of which reason and decency forbids a more
Appellant, in support of his second contention, insists that the evidence shows that the act was consummated, and hence he was not guilty of conspiracy; that both actors were human beings who acted voluntarily, and if they were guilty of a felony, those who aided or abetted or encouraged the offense were principals. §2095 Bums 1914, Acts 1905 p. 584, §224. Appellant seeks to have us apply the doctrine that, where concert of action is necessary to an offense, a charge of criminal conspiracy will not lie. However, that principle does not apply where the unlawful agreement or combination of persons for the purpose of committing a felony is, of itself, an offense, which is the case under our statute, §2647 Burns 1914, supra. Moreover, if it be conceded that appellant might have been indicted and tried as a principal, rather than as a conspirator, still we know of no statute or rule of
Judgment affirmed.