Borden v. State
| Decision Date | 15 January 1927 |
| Docket Number | A-5677. |
| Citation | 252 P. 446,36 Okla.Crim. 69 |
| Parties | BORDEN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
An information charging the commission of the crime against nature, in the language of the statute, with a man named, is sufficient.
The detestable and abominable crime against nature, committed with mankind or with a beast, made punishable by Penal Code (section 1867, C. S. 1921), includes not only the offense of sodomy, but any other act of bestial or unnatural copulation.
Where it appears in a prosecution for the detestable crime against nature, committed upon a child of tender years, voluntary statements made by the victim of the assault, a few minutes after the perpetration of the crime, are admissible in evidence as a part of the res gestæ.
In order to constitute declarations a part of the res gestæ, it is not necessary that they were precisely coincident in point of time with the principal fact. If they sprang out of it were voluntary and spontaneous, and made at a time so near it as to preclude the idea of deliberate design, they may be regarded as contemporaneous and admitted in evidence.
In a prosecution for the infamous crime against nature, evidence held to support the verdict and that no reversible error was committed on the trial.
Appeal from District Court, Pawnee County; Edwin R. McNeill, Judge.
Wallace Borden was convicted of sodomy, and he appeals. Affirmed.
McCollum & McCollum, of Pawnee, for plaintiff in error.
George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for the State.
The plaintiff in error, Wallace Borden, was tried in the district court of Pawnee county upon the charge of having committed the detestable and abominable crime against nature, committed on the person of a boy 13 years of age by penetration per os and the following verdict returned:
"We, the jury, do upon our oaths find the defendant Wallace Borden, guilty of sodomy as charged in the information and leave his punishment to be assessed by the court.
Motion for new trial was duly filed and overruled. On February 23, 1925, the court sentenced the defendant to imprisonment in the reformatory at Granite for the term of two years.
The errors assigned present the questions whether the information charges a public offense, whether the court erred in admitting incompetent testimony, and whether the evidence is sufficient to sustain the verdict of the jury.
The questions will be disposed of in the order stated:
Upon arraignment the defendant interposed a demurrer to the information on the grounds that it does not state facts sufficient to constitute the offense attempted to be charged, and that the same is not direct and certain as to the offense attempted to be charged, and that it is uncertain and insufficient, in not alleging the particular circumstances of the offense. The demurrer was overruled.
It is alleged in the information that in Pawnee county, October 29, 1924, the defendant did then and there willfully, unlawfully, and feloniously make an assault upon one Fred Freeman, a male person 13 years of age, and did unlawfully, intentionally, forcibly, and against the order of nature have a venereal affair with the said Fred Freeman, and did commit the abominable and detestable crime against nature."
It is urged that the information is not direct and certain as to the offense charged, or the particular circumstances of the offense charged as required by the statute (section 2556, C. S. 1921), and that the mere employment of the language of the statute is not sufficient. Section 1867, C. S. 1921, reads as follows:
The statute gives no definition of the crime which the law with due regard to the sentiments of decent humanity has always treated as one not fit to be named. It was never the practice to describe the particular manner or the details of the commission of the act. Even in the time of Blackstone this rule was applied to the common-law crime of sodomy. 4 Bl. Comm. 215.
In the following cases it is held that an indictment or information, charging the commission of the crime against nature, in the language of the statute, is sufficient. Honselman v. People, 168 Ill. 172, 48 N.E. 304; Kelly v. People, 192 Ill. 119, 61 N.E. 425, 85 Am. St. Rep. 323; State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580; Herring v. State, 119 Ga. 709, 46 S.E. 876.
This offense consists in a carnal knowledge, committed against the order of nature, with mankind or with a beast.
In Kelly v. People, supra, the court expressed the opinion that the accused would be guilty where the penetration was per os, whether he was the pathic or not.
In Ex parte De Ford, 14 Okla. Cr. 133, 168 P. 58, this court said:
It follows from what has been said that the demurrer to the information was properly overruled.
In order that the other questions raised may be properly understood, consideration of the evidence will be necessary.
Fred Freeman, the alleged assaulted party, was a little boy 13 years old, and attending school at Hallett. He went to school by going from his home to a point on the public highway, a distance of about 2 1/2 miles, on foot, and from there to and from school, a distance of 3 or 4 miles, in a school bus. A schoolhouse called Stony Point was about midway between his home and the place he met the bus. On the day alleged he left the school bus at the usual place, and on the road home overtook the defendant and a few minutes later the alleged offense was committed. The defendant was a large boy in his 18th year; he was nearly six feet tall and weighed over 200 pounds; he lived with his mother near Cleveland. A day or two before the alleged assault he left his home and proceeded to the town of Maramec for the purpose of paying a note due at the Maramec State Bank, making the trip on foot, except such occasional rides as he caught in cars. After paying his note he...
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