Ephraim v. State
| Citation | 89 So. 344,82 Fla. 93 |
| Parties | EPHRAIM et al. v. STATE. |
| Decision Date | 05 July 1921 |
| Court | United States State Supreme Court of Florida |
Error to Circuit Court, Alachua County; B. A. Thrasher, Judge.
Jim Ephraim and Martello Metz were convicted of the crime against nature, and they bring error.
Judgment affirmed.
Syllabus by the Court
Statute making punishable crime against nature held to include other acts of bestiality. The offense denounced by section 3534, Gen. Stats. 1906 (section 5424, Rev. Gen. Stats. 1920), and making punishable the abominable and detestable crime against nature either with mankind or with beasts is not merely the common-law crime against nature, but includes other acts of bestiality.
Motion in arrest cannot be based on matters not on face of record. Motions in arrest of judgment cannot be based upon matters which do not appear upon the face of the record proper.
Assignments of error not argued in counsel's brief held abandoned. Upon a criminal appeal, assignments of error not argued in counsel's brief are deemed abandoned.
Act providing for punishment for unnatural and lascivious act held not applicable. Acts 1917, c. 7361 (Rev. Gen. St. 1920 § 5425), providing for the punishment of any unnatural and lascivious act with another person, held not applicable to a sodomy prosecution under section 5424, which comprehends an act of copulation between two human beings per os.
Robert E. Daivs, of Gainesville, for plaintiffs
Robert E. Davis, of Gainesville, for plaintiffs
Rivers H. Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen for the State.
The plaintiffs in error were indicted for the 'abominable and detestable crime against nature' with one Son Gary. The offense was alleged to have been committed in Alachua county on December 5, 1920. The defendants pleaded not guilty. The jury returned a verdict of guilty. Thereupon a motion in arrest of judgment was made upon grounds which do not appear upon the face of the record, but rest upon the evidence adduced at the trial. The motion was correctly overruled. See Henderson v. State, 55 Fla. 36, 46 So. 151; Harris v. State, 53 Fla. 37, 43 So. 311; Freeman v. State, 50 Fla. 38, 39 So. 785; Thomas v State, 73 Fla. 115, 74 So. 1; Caldwell v. Peoples' Bank of Sanford, 73 Fla. 1165, 75 So. 848.
Judgment of conviction was entered and sentence to five years' imprisonment in the state prison was imposed. There was a motion for a new trial, which was also overruled. This motion contained four grounds, each questioning the sufficiency of the evidence. There are 14 assignments of error. The last 2 attack the orders overruling the motion in arrest of judgment and the motion for a new trial. They are not argued in counsel's brief, and therefore abandoned. The remaining 12 assignments rest upon the admission of evidence for the state over the objection of the defendants.
The question presented is whether the crime defined by section 3534, Gen. Stats. 1906 (section 5424, Rev. Gen. Stats. 1920), comprehends the act of copulation between two human beings per os. The statute above referred to is the only one upon the subject. It provides for punishment for the commission of the 'abominable and detestable crime against nature.' If the statute includes the act committed by the two defendants upon the person named Son Gary, there is no merit in the assignments of error, and the judgment should be affirmed.
The evidence is undisputed. The act for which the defendants were indicted under the statute referred to was proven. A discussion of the loathsome, revolting crime would be of no edification to the people, nor interest to the members of the bar. The creatures who are guilty are entitled to a consideration of their case because they are called human beings and are entitled to the protection of the laws.
Other courts in the discharge of the duties devolving upon them have been compelled to consider the same question as is presented in this case, and held that acts like those proven in this case constituted the 'detestable crime against nature.' The punishment at common law for such offense as is denounced by our statute, which includes sodomy committed per anum, was death, something burning alive. See 36 Cyc. 506. But such punishment has been modified by people of later times, not that the crime is less repulsive now, but perhaps out of humane consideration for the creatures whose low moral and intellectual standard entitles them to a kind of pity. The brief of the Attorney General cites numerous authorities for our interpretation of the statute. See Ex parte De Ford, 14 Okl. Cr. App. 133, 168 P. 58; Glover...
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...73 Fla. 1165, 75 So. 848; Golding v. State, 31 Fla. 262, 12 So. 525; Lake v. State, 100 Fla. 373, 129 So. 827, 131 So. 147; Ephriam v. State, 82 Fla. 93, 89 So. 344; v. State, 88 Fla. 555, 102 So. 884; Sawyer v. State, 94 Fla. 60, 113 So. 736. Such motions are made after verdict and before ......
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