Berryman v. State

• Decision Date: 13 April 1955
• Docket Number: No. A-12122,A-12122
• Citation: 283 P.2d 558
• Parties: Wilburn Alfred BERRYMAN, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 558

283 P.2d 558

Wilburn Alfred BERRYMAN, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12122.

Criminal Court of Appeals of Oklahoma.

April 13, 1955.

Rehearing Denied May 18, 1955.

SYLLABUS BY THE COURT.

1. The Constitution of Oklahoma, Art. 2, Sec. 17, authorizes prosecutions for felonies by information after examination and commitment by a magistrate, or by indictment by a grand jury. These are concurrent remedies and the prosecution may be by either mode.

2. Where accused, charged by a preliminary complaint before a committing magistrate for the commission of a felony, was released on bond, and subsequent to filing of complaint a grand jury was convened, and upon final discharge of grand jury the case against accused had not been considered and no indictment had been returned, held, the failure of the grand jury to indict the accused did not operate to dismiss the charge against him.

3. The Oklahoma statute prohibiting the 'detestable and abominable crime against nature' prohibits all unnatural sexual copulations including oral genital contact.

4. Under Oklahoma statute, 21 O.S.1951 § 152, the test in determining responsibility for the commission of crime is fixed at the point where the accused has the mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act.

5. The doctrine that an irresistible sexual impulse relieves criminal responsibility though the accused was capable of distinguishing between right and wrong with respect to the act in question is not recognized in Oklahoma.

Appeal from District Court of Oklahoma County; Wm. L. Fogg, Trial Judge.

Wilburn Alfred Berryman was convicted in the District Court of Oklahoma County for the detestable and abominable crime against nature (fellatio), and was sentenced to serve a term of 5 years in the penitentiary. Affirmed.

Sid White, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

JONES, Presiding Judge.

The defendant, Wilburn Alfred Berryman, was charged by an information filed in the District Court of Oklahoma County with the detestable and abominable crime against nature sometimes referred to as sodomy; a jury was waived, defendant was tried, found guilty and sentenced to serve a term of 5 years in the state penitentiary and has appealed.

The following assignments of error are presented:

1. The court erred in overruling the motion to quash the information.

2. The court erred in overruling the demurrer to the information.

3. The evidence showed defendant was guilty of fellatio which was not a crime within the terms of the statute and therefore the evidence was insufficient to sustain the conviction.

4. The defendant was and is insane and should not be punished.

In connection with the first assignment of error, the defendant contends that the defendant had been charged by an information with sodomy at the time a grand jury was convened; that defendant was entitled to have this charge investigated by a grand jury and when it did not so investigate and return an indictment against him, the prosecution cannot proceed upon the pending information but should be quashed.

This question has been decided adversely to the contention of defendant in the case of Jordan v. Turner, 95 Okl.Cr. 307, 245 P.2d 748, wherein it was held:

'The Constitution of Oklahoma (Art. 2, Sec. 17) authorizes prosecutions for felonies by information after examination and commitment by a magistrate, or by indictment by grand jury. These are concurrent remedies and the prosecution may be by either mode.

'It is the duty of the grand jury to inquire into the case of every person imprisoned in jail on a criminal charge and not indicted. 22 O.S.1951 Sec. 338.

'Where prisoner, charged by a preliminary complaint before a committing magistrate for the commission of a felony, was released on bond, and subsequent to filing of complaint, a grand jury was convened, and upon final discharge of grand jury the case against petitioner had not been considered and no indictment had been returned, held, the failure of the grand jury to indict the prisoner did not operate to dismiss the charge against prisoner * * *.'

The sound reasoning in support of the above rules of law are elaborated upon in the body of that opinion.

The second and third assignments of error are directed to the same proposition and will be considered together. The information filed against the accused alleged that he 'did unlawfully * * * commit the abominable and detestable crime against nature by then and there taking the penis of the said Jack Eugene Lacefield into his mouth and sucking the same.'

The proof of the State included the testimony of Jack Lacefield, a 15 year old boy who lived in Oklahoma City and upon whom the crime was allegedly committed, together with two eyewitnesses to the alleged act, Jackie Johnson, who testified he was present in the automobile at the time the act was committed by the defendant, and S. C. Killman who lived on the premises to the rear of where the act was allegedly committed and who happened to walk by the automobile of defendant and saw defendant committing the act as alleged in the information and reported it to the officers. According to the testimony of the youths, the act had been repeated with each of them on other occasions and evidently if it had not been for Mr. Killman observing what was being done and reporting it, nothing would ever have been said or done about the alleged crime.

It is the contention of counsel for the accused that the statute is indefinite and unenforceable and not sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalty and secondly, it is contended that the acts charged against the accused and for which he was convicted do not constitute the crime of sodomy.

The statute in question provides:

'Every person who is guilty of the detestable and abominable crime against nature, committed with mankind or with a beast, is punishable by imprisonment in the penitentiary not exceeding ten years.' 21 O.S.1951 § 886.

'Any sexual penetration, however slight, is sufficient to complete the crime against nature.' 21 O.S.1951 § 887.

The above statute has had the consideration of this court on many occasions. Ex parte DeFord, 14 Okl.Cr. 133, 168 P. 58; Borden v. State, 36 Okl.Cr. 69, 252 P. 446; Roberts v. State, 57 Okl.Cr. 244, 47 P.2d 607; Cole v. State, 83 Okl.Cr. 254, 175 P.2d 376; Lefavour v. State, 77 Okl.Cr. 383, 142 P.2d 132; Woody v. State, 95 Okl.Cr. 21, 238 P.2d 367. Counsel for the accused cites cases which sustain his contention that the act of sodomy as known to the common law was defined as the copulation per anus of a man with another man or with a woman or the copulation of a man or a woman with a brute animal. The courts who so hold go back to the statutes of Henry VIII's time (25 Henry VIII, Chapter 6) which prohibited buggery with man or beast under penalty of death and buggery included only genitalanal contact between man and man or between man and woman and what is now termed bestiality, which is genital contact with animals. It did not include fellatio (oral genital contract) or cunnilingus (oral vaginal contact).

Because of the omissions of the statute of the 1500's a defendant convicted of sodomy by an English court in 1817 for an act of fellatio accomplished with a boy 7 years of age was directed to apply for a pardon. The judges of England had met and decided that these facts did not constitute the crime of sodomy. Rex v. Jacobs, 168 Eng.Rep. 830. Some American courts felt compelled to follow the authority of this case but the majority of the courts who have considered the matter have interpreted their sodomy and crime against nature statutes so as to prohibit fellatio. The Oklahoma statute does not mention sodomy but is directed at the 'abominable crime against nature' which would be more comprehensive than sodomy as defined by the common law. The states which have statutes similar to ours are virtually unanimous in holding that it prohibits oral genital contract (fellatio). The Criminal Court of Appeals of Oklahoma has adopted this view. In the early case of Ex parte DeFord, supra [14 Okl.Cr. 133, 168 P. 59], Judge Matson, speaking for this court gave an extended discussion of the question involved as to whether the oral genital contact of a male with a male was prohibited by our statute. He quoted extensively from the case of State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A.,N.S., 266, wherein it was stated:

"The authorities cited by the defendant have implicitly followed this ipse dixit of the English court without giving any reason therefor, always controlled solely by the doctrine of state decisis, and often with protests against the authority of the rule. Although there are no common-law crimes in this state, we must turn to that law for the definition of certain crimes where the meaning thereof is not set forth in our Code. The rule at common law was that: 'All unnatural carnal copulation whether with man or beast seems to come under the notion of sodomy.' 1 Hawkins, Pleas of the Crown, p. 357. In the order of nature the nourishment of the human body is accomplished by the operation of the alimentary canal, beginning with the mouth and ending with the rectum. In this process food enters the first opening, the mouth, and residuum and waste are discharged through the nether opening of the rectum. The natural functions of the organs for the reproduction of the species are entirely different from those of the nutritive system. It is self-evident that the use of either opening of the alimentary canal for the purpose of sexual copulation is against the natural design of the human body. In other words, it is an offense against nature. There can be no difference in...