Bennett v. Abram, 5594
| Decision Date | 13 February 1953 |
| Docket Number | No. 5594,5594 |
| Citation | 253 P.2d 316,57 N.M. 28,1953 NMSC 13 |
| Parties | BENNETT et al. v. ABRAM. |
| Court | New Mexico Supreme Court |
J. H. Burttram, Santa Fe, for petitioners.
W. F. Kitts, Asst. Atty. Gen., for respondent.
This is an original proceeding in habeas corpus. The decisive question is whether carnal copulation per os constitutes the crime of sodomy. Chronologically, the events in the crime charged may be stated as follows: On May 17, 1951, while petitioners were confined in the common jail of Quay County under a charge of burglary, they were apprehended in the commission of acts of unnatural sexual copulation per os between themselves and another prisoner then confined in jail with them. The were taken before the trial court and upon their pleas of guilty to an information charging sodomy, were sentenced to serve a term in the state penitentiary of not less than five years nor more than fifteen years. They are now in the custody of respondent, warden of the state penitentiary. The evidence fails to disclose that they were advised of their right to counsel or that they waived counsel.
Petitioner commenced this action on October 20, 1952 by filing a petition in this court in which it is claimed that they are illegally deprived of their liberty, having pleaded guilty to the charge of sodomy under a misapprehension of what facts constitute the crime.
Whether the acts committed constitute sodomy, and whether the petitioners intelligently entered their pleas of guilty, are questions to be answered. Both must be answered in the negative.
We have no statute defining the crime of sodomy. Our statute, Sec. 41-704, N.M.Sts. 1941 Comp., providing a penalty only, reads:
'Every person convicted of the abominable crime of sodomy, committed either with human being or any animal, on conviction thereof, shall be imprisoned for not less than one (1) year, or fined in any sum not less than one thousand dollars ($1,000), or by both.'
Noticeably, our statute is not explicit as to what the term 'sodomy' includes. Since we have no statutory definition, we must look to the common law. At common law, sodomy is defined as either the sexual copulation, per anum, of a man with another man or with a woman; or the copulation of a man or a woman with a brute animal. Rex. v. Jacobs, Russell & Ryan 331, 168 English Reprint 830; Reg. v. Allen, 1 Carrington & Kirwan 495; Reg. v. Allen, 1 Denison, 364; Russell, Law of Crimes, 9th English Ed. p. 967.
Such is the accepted definition of eminent American text writers. McClain, Criminal Law, 1897 Ed. Sec. 1153; Wharton, Criminal Law, 12 Ed. Vol. 1, Sec. 755; Burdick, Law of Crime, 1946 Ed. Vol. 3, Secs. 877-878; Bishop, Criminal Law, 7th Ed. Vol. 2, Sec. 1194; Pope, Legal Definitions, Vol. 2, p. 1491.
In the following jurisdictions the courts have held that sexual copulation per os does not constitute the offense of sodomy: Koontz v. People, 82 Colo. 589, 263 P. 19; State v. Johnson, 44 Utah 18, 137 P. 632; Weaver v. Territory, 14 Ariz. 268, 127 P. 724; People v. Boyle, 116 Cal. 658, 48 P. 800; Kinnan v. State, 86 Neb. 234, 125 N.W. 594, 27 L.R.A.,N.S., 478; Mitchell v. State, 49 Tex.Cr.R. 535, 95 S.W. 500; Munoz v. State, 103 Tex.Cr.R. 439, 281 S.W. 857; Wise v. Commonwealth, 135 Va. 757, 115 S.E. 508; People v. Schmitt, 275 Mich. 575, 267 N.W. 741.
I must be conceded that there are cases to the contrary. Herring v. State, 119 Ga. 709, 46 S.E. 876; Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L.R.A.,N.S., 473; State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A.,N.S., 266; State v. Maida, 6 Boyce 40, 29 Del. 40, 96 A. 207; State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580; State v. Cyr., 135 Me. 513, 198 A. 743, and other cases which might be cited. These cases, however, are ditinguishable, turning on statutory provisions. For that matter, we have found no cases under statutes...
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State v. Trejo
...statute, suggested by the New Mexico Supreme Court in 1953, comes from Manual for Courts-Martial, U.S. Army, 1959. Bennett v. Abram, 57 N.M. 28, 253 P.2d 316 (1953). The New Mexico sodomy statute reads as Sodomy consists of a person intentionally taking into his or her mouth or anus the sex......
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State v. Massey, 5698
...for not less than one (1) year, or fined in any sum not less than one thousand dollars ($1,000), or by both.' This Court in Bennett v. Abram, 57 N.M. 28, 253 P.2d 316, in holding that sexual copulation per os (felatio)does not constitute the crime of sodomy within the meaning of the aforequ......
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State v. Elliott
...one act of sodomy. We disagree with this interpretation of § 40A--9--6. The Court of Appeals relied on our reasoning in Bennett v. Abram, 57 N.M. 28, 253 P.2d 316 (1953) to reach this result. In that case there was no definition of sodomy in the statutes, and the court held that the common ......
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State v. Putman
...may be quashed. Section 41--6--9, N.M.S.A. 1953. Our statute applies to acts per os as well as acts per anum. Compare Bennett v. Abram, 57 N.M. 28, 253 P.2d 316 (1953), which was decided before our statutory definition was Our act defines sodomy to include a taking into the mouth 'the sexua......