Barton v. State

Decision Date01 June 1949
Docket Number32355.
Citation53 S.E.2d 707,79 Ga.App. 380
PartiesBARTON v. STATE.
CourtGeorgia Court of Appeals

Syllabus by the Court.

1. Where in an indictment charging a crime capable of being committed in more than one way, failure to charge the manner in which the crime was committed subjects the indictment to a proper special demurrer, but not to an oral motion to quash in the nature of a general demurrer where the indictment has charged the crime in the substantial language of the code.

2. The charge complained of was erroneous for the reasons given in division 2 of the opinion. MacINTYRE, P. J., dissents to the ruling in this headnote.

Stewart Barton was indicted in the Superior Court of Columbia County for sodomy. He was tried, found guilty, and sentenced to life imprisonment. The defendant's motion to quash the indictment 'in the nature of a general demurrer' was overruled and he filed exceptions pendente lite. His motion for a new trial as amended, containing the general and two special grounds, was overruled and he excepted.

Stevens & Stevens, Thomson, for plaintiff in error.

George Hains, Sol. Gen., Augusta, Randall Evans, Jr., Thomson, for defendant in error.

MacINTYRE Presiding Judge.

1. Omitting the formal part, the indictment was in the following language: 'For that said accused * * * did then and there have carnal knowledge and connection against the order of nature, and in an unlawful manner, with one Edgar Luckey, etc.' The material portions of the motion to quash was in the following language: 'The indictment does not set forth any offense against this defendant, for the reason that it is not alleged in what way and manner carnal knowledge was had, and for that reason * * * we move to quash the indictment. How, and in what manner it was against the order of nature, and we say * * * we will have to have other information for us to represent the defendant in the way and manner in which it was done * * * There would be more than one way and manner in which this offense might be committed, and we are entitled to know the way and manner the State alleges it was committed.'

'Every indictment * * * shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury.' Code, § 27-701. Code, § 26-5901, defines sodomy in these terms: 'Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.' We should have been inclined, without question, to think that the indictment, being in the terms of the Code, was sufficient but for the decision in Herring v. State, 119 Ga 709, 46 S.E. 876, which has been reaffirmed, followed, or approved in the following cases:White v. State, 136 Ga. 158, 71 S.E. 135; White v. State, 9 Ga.App. 307, 71 S.E. 499; Jones v. State, 17 Ga.App. 825, 88 S.E. 712; Comer v. State, 21 Ga.App. 306, 94 S.E. 314; Wharton v. State, 58 Ga.App. 439, 198 S.E. 823; McMichen v. State, 62 Ga.App. 50, 7 S.E.2d 749; Perryman v. State, 63 Ga.App. 819, 12 S.E.2d 388; Knighton v. State, 72 Ga.App. 43, 32 S.E.2d 861. The Herring case, supra, holds that the crime of sodomy may be committed otherwise than per anum. At common law the crime of sodomy could be committed only per anum by man with man or by man with woman. If the common law were still of force in this State, the indictment in the instant case would have been so plain (by its terms capable of meaning only one act, carnal knowledge and connection against the order of nature; namely, per anum) as to have been clearly understood by the jury as required by Code, § 27-701. The indictment in fact essentially follows the common-law form of the indictment, as set out by Cobb in his Georgia Penal Code, 1850, p. 89, which, so far as we are aware, is the only model given in any of the Georgia books, texts, reports, or statutes for an indictment for sodomy. Under the status of the law as it has apparently existed since the decision in the Herring case, supra [119 Ga. 709, 46 S.E. 881], the crime of sodomy may be committed in a variety of ways, including 'all unnatural carnal copulations.' If under our statute, sodomy includes 'all unnatural carnal copulations' we are faced with an apparent conflict between the Herring case, a decision rendered by five justices, Simmons, C. J., being absent, and the decision in Thompson v. Aldredge, 187 Ga. 467, 200 S.E. 799, wherein an unnatural copulation between two women was held to be not sodomy, a decision by the full court. If the decision in the Herring case is the correct one, then sodomy may be committed in more then one way and the indictment would not be sufficient to withstand a proper demurrer in the nature of a motion to quash, for, under the repeated rulings of both the Supreme Court and this court Code, § 27-701, providing that indictments in the terms of the code are sufficient, was not intended to dispense with good pleading, or to deny to one accused of an offense, which may be committed in more than one way, a statement of the facts relied upon to establish his guilt, sufficiently full and complete to put him upon reasonable notice of what he is called upon to meet. Locke v. State, 3 Ga. 534; Johnson v. State, 90 Ga. 441, 444, 16 S.E. 92; Langston v. State, 109 Ga. 153, 154, 35 S.E. 166, 779; Kerr v. State, 185 Ga. 499, 195 S.E. 436; Isom v. State, 71 Ga.App. 803, 32 S.E.2d 437; Roberts v. State, 54 Ga.App. 704, 188 S.E. 844.

Since the decision in the Herring case is binding upon us upon the principle enunciated there, we have no recourse but to bow to its authority, and, consequently, to determine whether the indictment should have been quashed on demurrer. However, since the court in the Thompson case refused to take a view of the crime as including 'all unnatural carnal copulations' even where the practice involved the odious and unnatural copulation per lengua in vagina between two women, we shall examine rather more closely than we would have otherwise done the necessary elements of the crime. It can hardly be necessary for us to say that the subject is distasteful. The question involved, however, is one of law and cannot be brushed aside or lightly disposed of. An adequate consideration of it seems to require a somewhat full discussion and we shall endeavor to meet this requirement without unnecessary indelicacy of expression, but also without prudery or idle denunciation of the crime. This character of conduct is, of course, a vice of depraved natures and instances of its coming before the courts of this State are fortunately rare. Courts are not, however, called upon to expound upon the esthetics or lack of esthetics of a crime in determining the law involved, and however much they may look upon the crime with disgust, their abhorrence of the crime is not to be allowed to blind them to a correct application of the principles of law involved.

The first mention of the crime of sodomy in our statutes, as far as we are aware, appears in the Penal Code of 1816, § 61, which, while it does not define the crime, provides that its punishment shall be by life imprisonment. The Penal Code of 1816 was never made operative, but the section just mentioned was reiterated in the Penal Code of 1817, § 61. See Prince's Digest of Georgia Laws 1820, p. 350, § 61. We are aware of no English statute which enumerates the elements of or defines the crime, unless it be true, as Justice Fortescue says in the case of The King v. Wiseman, 92 Eng.Rep., Full Reprint, 774, the definition is given in a statute of the of Edgar, ca. 959 A.D. We are, of course, aware of and familiar with the statutes which, while not defining the crime beyond denominating it the 'crime against nature, among christians not to be named,' prescribe its punishment as death, 25 Henry 8, c. 6 (repealed by 1 Mary 1); 5 Elizabeth c. 17 (which revived and made perpetual 25 Henry 8, c. 6). The statute of 24 & 25 Victoria c. 100, § 61, reduced the penalty to life imprisonment (as the Georgia statute had done some forty-five years before) or for a term of not less than ten years. Since there are no copies of the statutes of Edgar extant in the State Library or otherwise available to use we must seek elsewhere a definition of the crime.

The crime derives its name from the City of Sodom where it seems the sexual perversion was prevalent, Genesis 19:1-35, and it would seem that the crime interdicted was perpetrated in one way, per anum, for in the Mosaic law it was written, 'thou shalt not lie with mankind as with womankind, Leviticus 18:22; 20:13; Deuteronomy 23:17, and see I Kings 14:24; Romans 1:27, and Corinthians 6:9. The Greeks denominated the crime pederasty, connoting coition per anum, or literally, love of boys, though the frequent use of the word pais, meaning either boy or girl, would seem to indicate that the crime was likewise committed upon girls. The Romans forbade the crime spoken of as venus postica (see Petronius' Satyricon) (hence the archaic English word, 'venery,' meaning sexual excesses) which strongly hints that the crime prohibited was perpetrated per anum, if indeed it does not mean exactly that! Lord Coke in his Institutes gives this definition: Buggery or Sodomy. Buggery is a detestable and abominable sin, amongst christians not to be named, committed by carnal knowledge against the ordinance of the creator, and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast.' 2 Coke's Institutes, Ed.1797, Part III, p. 58.

Hawkins in his Pleas of the Crown, p. 357, states: 'All unnatural copulations, whether with man or beast, seem to come under the notion of sodomy * * *' citin...

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