Fisher v. State

• Decision Date: 11 March 1955
• Citation: 1 McCanless 594,277 S.W.2d 340,197 Tenn. 594
• Parties: , 197 Tenn. 594 Carl Eugene FISHER v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 340

277 S.W.2d 340

1 McCanless 594, 197 Tenn. 594

Carl Eugene FISHER v. STATE of Tennessee.

Supreme Court of Tennessee.

March 11, 1955.

Roy N. Stansberry, Knoxville, for plaintiff in error.

Knox Bigham, Asst. Atty. Gen., for the State.

BURNETT, Justice.

This is an appeal on the technical record from a conviction for a crime against nature. Code, § 11184. There appears to be no error in the technical record. Upon an examination of the record we found that the plaintiff in error had no counsel and it was thus that the court appointed Mr. Roy Stansberry to represent him. The only insistence made is that the offense as described in the indictment is not within the contemplation of the Statute which is:

'Crimes against nature.--Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary not less than five nor more than fifteen years.' Code, § 11184.

The indictment in the case charges penetration per os. The able brief, prepared by Mr. Stansberry and his assistant, Mr. Tom Dossett of the University of Tennessee Law School, relies upon the common law rule that such an act does not constitute the crime of sodomy. To support this contention counsel cites numerous cases from many States in the Union as well as English decisions. To the contrary the State insists that the Statute is not entitled to such a narrow construction and that the trend of all modern authority supports the position under this Statute the indictment here is good.

The narrow restrictive definition of the offense is referred to in the case of State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A.,N.S., 266, thus:

'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 Easter 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.'

Thus it appears that the rule contended for which is supported by numerous authorities that the basis of this rule was more or less perfunctory and was arrived at with apparently no reason. This ancient doctrine has been repudiated by many modern authorities as illustrated by the following cases: State v. Griffin, 175 N.C. 767, 94 S.E. 678; Honselman v. People, 168 Ill. 172, 48 N.E. 304; State v. Start, supra; Ex parte De Ford, 14 Okl.Cr. 133, 168 P. 58; Means v. State, 125 Wis. 650, 104 N.W. 815; State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580; State v. Maida, 6 Boyce 40, 29 Del. 40, 96 A. 207; State v. Altwatter, 29 Idaho 107, 157...