State v. Anthony

• Decision Date: 28 May 1946
• Citation: 169 P.2d 587,179 Or. 282
• Parties: STATE <I>v.</I> ANTHONY
• Court: Oregon Supreme Court

179 Or. 282

169 P.2d 587

STATE

v. ANTHONY

Supreme Court of Oregon.

Argued February 26, 1946.

Affirmed May 28, 1946.

Rehearing denied September 3, 1946.

Criminal law — Common law

1. In the absence of provision to the contrary, a statute may punish an offense by giving it a name known to the common law, without further defining the offense, and the common law definition will be applied.

Criminal law — Sex perversion — Common law

2. In determining the validity of the statute prohibiting acts of sexual perversity, cognizance must be taken of the fundamental principle that in the creation of an offense which was not a crime at common law a statute must be sufficiently certain to show what the legislature intended to prohibit.

Criminal law — Vagueness of statute

3. The doctrine that legislation is void for vagueness stems from the ancient common law and was not in origin dependent upon the provision of any written Constitution.

Criminal law — Statutory construction — Vagueness

4. The doctrine that legislation is void for vagueness originated in criminal cases and grew out of the concept that criminal statutes are to be strictly construed in favor of the accused.

Constitutional law — Criminal statute — Construction

5. In determining constitutionality and validity of statute prohibiting acts of sexual perversity, the laws of Oregon and the constitutional decisions of the federal Supreme Court must be considered.

Constitutional law — Criminal statute — Construction

6. A criminal statute passed pursuant to the police power should be stricken down for indefiniteness only if such statute cannot be saved wholly or in part by judicial application of the rules of statutory construction.

Criminal law — Statutory construction

7. If a state statute is by the state courts limited in its application to cases which come clearly within it, the construction as limited will be adopted by the United States Supreme Court, and if the act as construed violates no provision of the federal Constitution, such Supreme Court will not invalidate the statute because of the indefiniteness thereof prior to construction.

Sodomy — Statutory construction

8. In determining validity of statute prohibiting acts of sexual perversity, the question was whether the meaning of general words could be limited to cases reasonably within such words and within the evil which the legislature intended to suppress.

Constitutional law — Sex perversion — Statutes

9. In determining validity of statute prohibiting acts of sexual perversity, Supreme Court must seek a construction which will avoid unconstitutionality, in view of rule that indefinite statutes may be held violative of due process clause.

Constitutional law — Statutory construction

10. Every presumption in favor of validity of statute must be indulged, and statute should not be declared void unless invalidity is shown beyond a reasonable doubt.

Constitutional law — Statutory construction

11. Courts should refuse to extend the punishment to cases which are not clearly embraced in statutes and should also refuse by any mere verbal nicety forced construction or equitable interpretation to exonerate parties plainly within the scope of the statute.

Sodomy — Criminal statute — Construction

12. The doctrine of ejusdem generis is relevant in construing the statute prohibiting acts of sexual perversity.

Sodomy — Sex perversion — Statutes

13. The amendment to sodomy statute prohibiting acts of sexual perversity covers forms of misconduct not previously prohibited by the statute.

Sodomy — Sexual perversity

14. The words "sexual perversity" in statute prohibiting acts of sexual perversity are not limited in their application to cases involving carnal copulation, but are limited to cases directly involving the sex organ of at least one of the parties.

Sodomy — Crime against nature

15. The terms "sodomy" and "crime against nature" are synonymous and are limited to offenses directly involving the sex organ of at least one of the parties.

Sodomy — Sexual perversity

16. The words "sexual perversity" in statute prohibiting acts of sexual perversity do not mean any act of physical contact by a male person with the body of a female person with intent to cause and causing sexual satisfaction to the actor.

Sodomy — Crime against nature

17. The statute prohibiting acts of sexual perversity prohibits unnatural conduct contrary to course of nature performed for the purpose of accomplishing abnormal sexual satisfaction on the part of the actor, but does not prohibit such personal and physical intimacy as accompanies or precedes normal relations and intercourse between the sexes.

Sodomy — Sexual perversity

18. Evidence that male defendant inserted a blunt object into a woman's anal opening and through the wall of the rectal portion of the bowel and vagina in the course of a drunken debauch without justification or excuse with evil intent and for the abnormal sexual satisfaction of the man, warranted conviction for committing an act of sexual perversity.

Sodomy — Sex perversion — Statutes

19. In prosecution for committing act of sexual perversity by inserting blunt object into woman's anal opening and through the wall of the rectal portion of the bowel and vagina, the act directly involved the sex organ as required under the sexual perversity statute as construed by the Supreme Court.

Sodomy — Sex perversion — Statutes

20. In prosecution for committing act of sexual perversity by inserting blunt object into woman's anal opening and through the wall of the rectal portion of the bowel and vagina, evidence was sufficient to show that the obscene act was performed for the purpose of abnormal sexual satisfaction as required under the sexual perversity statute as construed by Supreme Court.

Constitutional law — Due process of law

21. A person who challenges an act under the Fourteenth Amendment must be one against whom the act in fact operates without due process.

Constitutional law — Due process of law

22. In prosecution for committing act of sexual perversity by inserting blunt object into woman's anal opening and through the wall of the rectal portion of the bowel and vagina, defendant could not challenge the sexual perversity statute under the Fourteenth Amendment, since the defendant was not one against whom the statute in fact operated without due process.

Sodomy — Instructions — Criminal intent

23. In sexual perversity prosecution, refusal to instruct that insertion of blunt instrument into anal opening and into bowel and vagina was not sexual perversity regardless of criminal intent, purpose, abnormal satisfaction, circumstances or results was proper.

Sodomy — Instructions — Sex perversion

24. In prosecution for committing act of sexual perversity by inserting blunt object into woman's anal opening and through the wall of the rectal portion of the bowel and vagina, insertion of quoted word in instruction that penetration of anal opening "alone" except by male organ, would not necessarily constitute crime of sexual perversity was proper.

                  See 48 Am. Jur. 550
                  58 C.J., Sodomy, § 2
                

IN BANC.

Appeal from Circuit Court, Coos County.

DAL M. KING, Judge.

Claud H. Giles, of Coos Bay, and Wm. P. Lord, Portland, for appellant.

Ben C. Flaxel, of North Bend, District Attorney for Coos County, Oregon; Fred A. Miller, of Salem, Assistant Attorney General, (George Neuner, Attorney General of Oregon, on the brief), for respondent.

AFFIRMED. REHEARING DENIED.

The defendant was convicted upon an indictment charging the commission of an act of sexual perversity. He now appeals.

BRAND, J.

The indictment charges that

"The said Milton Scott Anthony on the 20th day of November, 1944, in the County of Coos and State of Oregon then and there being, did then and there unlawfully and feloniously commit an act of sexual perversity upon another, to-wit: One Irma Smith, a female person, by then and there willfully, knowingly, intentionally and by force and violence inserting a blunt object, a more particular description thereof being to the Grand Jury unknown, into the anal opening and through the wall of the rectal portion of the bowel and the vagina of her, the said Irma Smith, with intent by him, the said Milton Scott Anthony, to thereby then and there perform and commit an act of sexual perversity upon her * * *."

The statute under which the indictment was drawn reads as follows:

"If any person shall commit sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustain osculatory relations with the private parts of any man, woman or child, or permit such relations to be sustained with his or her private parts, such person shall upon conviction thereof, be punished by imprisonment in the penitentiary not less than one year nor more than fifteen years." O.C.L.A. § 23-910.

The evidence is not discussed in the briefs, and we find no occasion to discuss it here. It is sufficient to say that from the evidence the jury would have been warranted in returning a special verdict to the effect that on the 20th day of November, 1944, in the County of Coos in the State of Oregon, the defendant did willfully, knowingly and intentionally and by force and violence insert a blunt object into the anal opening and through the wall of the rectal portion of the bowel and the vagina of Irma Smith, a female person, and that the act was committed in the course of a drunken debauch without justification or excuse, with evil intent and for the abnormal sexual satisfaction of the actor.

The first question involved relates to the constitutionality of that portion of O.C.L.A. § 23-910 under which the indictment was drawn. The original statute was enacted in 1864 and provided:

"If any person shall commit sodomy or the crime against nature, either with mankind or beast such person, upon conviction thereof, shall be punished by imprisonment in the...