Syllabus
by the Court.
Section
2444, Rev. Laws 1910, providing: "Any person who is
guilty of the detestable and abominable crime against nature
committed with mankind or with a beast, is punishable,"
etc.-includes copulation between human beings per os as well
as per anum.
[Ed
Note.-For other definitions, see Words and Phrases, First and
Second Series, Crime Against Nature; Sodomy.]
Original
application by Edwin De Ford for writ of habeas corpus. Writ
denied.
MATSON
J.
This is
an application on the part of the petitioner, Henry De Ford,
for a writ of habeas corpus to be discharged from
imprisonment in the state penitentiary at McAlester.
Petitioner
alleges that he is unlawfully restrained of his liberty in
that the acts charged against him and of which he was
convicted do not constitute "the abominable and
detestable crime against nature" within the
meaning of our statute. The information to which the
petitioner entered a plea of guilty alleged that he
(petitioner) did "willfully, intentionally and
feloniously commit the abominable and detestable crime
against nature, by then and there taking into his mouth the
penis of one F. H., and sucking the same until a seminal
emission ensued." The statute (sections 2444 and 2445,
Rev. Laws 1910) provides:
"Sec. 2444. Any 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.
Sec. 2445. Any sexual penetration, however slight, is
sufficient to complete the crime against nature."
It
follows if the act described in the information does not
constitute a crime under the foregoing statute the petitioner
should be discharged from custody, there being no other
statute of this state on the subject. The question here
involved is not one of first impression with the appellate
courts of several of the states, although this is the first
occasion this court has been called upon to consider the
legal propositions raised by the petition. The authorities in
those states where the common-law definition of sodomy has
not been enlarged upon are directly in conflict. Some are to
the effect that the act here charged was not intended to be,
nor was it, included within the term "sodomy" as
known to the common law, while the others, and to our mind
better reasoned opinions, are to the effect that "all
unnatural carnal copulation whether with man or beast seems
to come under the notion of sodomy at common law." The
precedents relied upon by counsel for petitioner apparently
are based upon and may be traced to the case of Rex v.
Jacobs, Russell and Ryan's Crown Cases, p. 331.
The
text-writers and courts who have followed the above case have
apparently done so without thoughtful consideration or
careful investigation. Their action in so doing is thus
criticized by the Supreme Court of Oregon in the case of
State v. Start, 65 Or. 178, 132 P. 512, 46 L. R. A.
(N. S.) 266:
"Many precedents are cited by the defendant in support
of his theory. They are all traced back to and have their
origin in the case of Rex v. Jacobs, Russell and
Ryan's Crown Cases, p. 331. The prisoner there was
convicted on evidence showing conclusively that he had
accomplished the act by force in the mouth of a boy about
seven years old, and the question was whether this was
sodomy. All that is said in answer to the question in the
report of the case follows: 'In Eastern term, 1817, the
judges met and were of opinion that this did not constitute
the offense of sodomy, and directed a pardon to be applied
for.' 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 stare 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 seem 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 reason whether such an unnatural coition takes place in
the mouth or in the fundament-at one end of the alimentary
canal or the other. The moral filthiness and iniquity against
which the statute is aimed is the same in both cases. Each is
rightfully included in the true scope and meaning of the
common-law definition quoted above from Hawkins. By far the
better reasoning is found in the cases of State v.
Whitmarsh, 26 S.D. 426, 128 N.W. 580; Herring v.
State, 119 Ga. 709, 46 S.E. 876, and others which might
be cited."
And
again in the admirable opinion and unanswerable reasoning of
Mr. Justice Cox of the Supreme Court of Indiana in Glover
v. State, 179 Ind. 459, 101 N.E. 630, 45 L. R. A. (N.
S.) 473:
"There can be no doubt of the soundness of the general
rule that penal statutes are to reach no further in meaning
than the fair and plain import of their words, and that acts
within the mischief and reason, but not within the letter
are to be excluded. But the crime of sodomy has always been
deemed a very pariah of crimes, and the acts constituting it
but seldom specifically defined. There can be no doubt that
many of the definitions are amply broad to include the act in
question. The earliest mention of it in the laws of England
may be found in Rotuli Parl. 50, Edward Ill, No. 58 (1376),
where it appears that a complaint was made that the Lombards
had brought into the realm a shameful vice, not to be named,
which complaint was accompanied by the suggestion that it
should be punished for the safety of the realm. The vice was
not more particularly described. The statute of 25 Henry VIII
made the 'detestable and abominable vice of buggery
committed with mankind or beast' a felony punishable by
death, but the felony was not otherwise described. Statutes
at Large, 1483-1539, p. 267.
Coke defines the crime as '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.' 3 Inst. 58. The same
definition is found in Burns' Justice of the Peace, vol.
1, p. 528. Hawkins tells us that 'all unnatural carnal
copulations, whether with man or beast, seem to come under
the notion of sodomy, which was felony by the ancient common
law, and punished, according to some authors, with burning,
according to others with burying alive.' 1 Hawk. P. C.
357. In Bacon's Abridgment the definition is 'an
unnatural copulation between two human creatures or between a
human and a brute
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