Glover v. State

• Decision Date: 25 April 1913
• Docket Number: 22,300
• Citation: 101 N.E. 629,179 Ind. 459
• Parties: Glover v. State of Indiana
• Court: Indiana Supreme Court

101 N.E. 629

179 Ind. 459

Glover v. State of Indiana

No. 22,300

Supreme Court of Indiana

April 25, 1913

From Howard Circuit Court; William C. Purdum, Judge.

Prosecution by the State of Indiana against Otho Glover. From a judgment of conviction, the defendant appeals.

Affirmed.

Blacklidge Wolf & Barnes, for appellant.

Thomas M. Honan, Attorney-General, and Thomas H. Branaman, for the State.

OPINION

Cox J.

As the result of a trial by the court, without the intervention of a jury, appellant was adjudged guilty of sodomy and was sentenced to an indeterminate term of imprisonment in the State prison of not less than 2 nor more than 14 years and to pay a fine of $ 100. Appellant was without means to employ counsel and the trial court appointed members of the bar of high standing to defend him, to the end that he should have a fair and lawful trial. The questions involved in the case are questions of law, and not of fact, and have never been determined by this court. It is with a commendable desire to have the ultimate judicial tribunal of this State constituted for that purpose, declare the law of the State on the questions involved, and thereby determine whether appellant was lawfully convicted, that counsel, who are serving without compensation, present this appeal for their client.

A motion to quash that count of the affidavit on which the conviction rests was made on the statutory grounds that the facts stated therein do not constitute a public offense, and that they are not stated with sufficient certainty. This motion was overruled and this ruling presents the first claim of error. Omitting the formal parts beginning and closing it, the count of the affidavit in question reads as follows: "Lawrence D. Stevens being first duly sworn according to law deposeth and saith that on or about the 19th day of August, 1912, at the County of Howard and State of Indiana, Otho Glover did then and there unlawfully and feloniously commit the abominable and detestable crime against nature with one (here the name of the pathic is given) and who was then and there a boy eleven years of age. Wherefore affiant says that said defendant, Otho Glover, is guilty of the crime of sodomy." It is earnestly contended by counsel that this charge of the commission of crime does not satisfy the requirements of our statute which provides that an indictment or affidavit must contain a statement of the facts constituting the offense in plain and concise language without unnecessary repetition. Acts 1905 p. 584, § 169, § 2040 Burns 1908. The crime intended to be charged by the affidavit is defined by § 2374 Burns 1908, Acts 1905 p. 584, § 473, which reads as follows: "Whoever commits the abominable and detestable crime against nature with mankind or beast; or whoever entices, allures, instigates or aids any person under the age of twenty-one years to commit masturbation or self-pollution, shall be deemed guilty of sodomy, and, on conviction, shall be fined not less than one hundred dollars nor more than one thousand dollars, to which may be added imprisonment in the state prison not less than two years nor more than fourteen years."

It is quite obvious that the affidavit shows an intent to charge appellant with sodomy by the commission of the abominable and detestable crime against nature with mankind as defined in the above section and not by the commission of either of the other base acts which by the terms of the section also constitute the crime of sodomy. The charge is made in the language of the statute which has long been deemed to be sufficient, as a general rule, in charging the commission of a statutory offense. It is, however, contended by counsel for appellant that this process of committing the crime of sodomy as defined by our statute is not an offense which may be so pleaded, and is not within the general rule, but comes within an exception to it which requires nicer certainty in the charge. It is true that where an offense is defined by the statute in generic terms, without naming the particular acts constituting it, it has been held, as an exception to the general rule, that it is not sufficient to charge it in the language of the definition but the particular acts must be stated which constitute the offense denounced. Johns v. State (1902), 159 Ind. 413, 415, 65 N.E. 287, 59 L. R. A. 789; State v. Patton (1902), 159 Ind. 248, 250, 64 N.E. 850; State v. Metsker (1908), 169 Ind. 555, 83 N.E. 241; State v. Bridgewater (1908), 171 Ind. 1, 85 N.E. 715. But by reason of the vile and degrading nature of this crime it has always been an exception to the strict rules requiring great particularity and nice certainty in criminal pleading, both at common law and where crimes are wholly statutory. It has never been the usual practice to describe the particular manner or the details of the commission of the act and where the offense is statutory a statement of it in the language of the statute, or so plainly that its nature may be easily understood, is all that is required. Coke, 3 Inst. 59; 12 Coke's Rep. 37; 2 Chitty, Crim. Law 50; Crown Cir. Comp. 86; 4 Blackstone, Comm. 215, 216; 20 Ency. Pl. and Pr. 274; 36 Cyc. 503; 1 Wharton, Crim. Law (11th ed.) § 760; People v. Williams (1881), 59 Cal. 397; Davis v. State (1810), 3 Har. & J. (Md.) 154; Lambertson v. People (1861), 5 Parker's Cr. R. (N.Y.) 200; Commonwealth v. Dill (1894), 160 Mass. 536, 36 N.E. 472; State v. Romans (1899), 21 Wash. 284, 57 P. 819; Bradford v. State (1893), 104 Ala. 68, 16 So. 107, 53 Am. St. 24; State v. Williams (1882), 34 La. Ann. 87; Honselman v. People (1897), 168 Ill. 172, 48 N.E. 304; Kelly v. People (1901), 192 Ill. 119, 61 N.E. 425, 85 Am. St. 323; State v. Whitmarsh (1910), 26 S.D. 426, 128 N.W. 580. Blackstone defines the crime of sodomy as the infamous crime against nature and does not more fully particularize the acts which constitute it but says: "I will not act so disagreeable a part, to my readers as well as to myself, as to dwell any longer upon the subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it in its very indictments, as a crime not fit to be named" (4 Blackstone, Comm. 216). Reason, decency and precedent, we think, unite in justifying the conclusion that the court did not err in overruling appellant's motion to quash the affidavit.

The second claim of error on the part of the trial court is founded on the overruling of appellant's motion for a new trial the causes for which are that the finding of the court is contrary to law and not sustained by sufficient evidence. The evidence shows clearly and without contradiction that the crime was committed by appellant as charged if it may be committed on the pathic per os. The able counsel for appellant contend that the offense, though statutory, is not so particularly defined as to exhibit the acts constituting it and that therefore we must resort to the common law to ascertain what these acts are and that we are required to exclude every act not included in the offense at common law. State v. Berdetta (1880), 73 Ind. 185, 38 Am. Rep. 117; Ledgerwood v. State (1893), 134 Ind. 81, 89, 33 N.E. 631; Woodworth v. State (1896), 145 Ind. 276, 279, 43 N.E. 933; State v. Patton, supra; Sopher v. State (1907), 169 Ind. 177, 181, 81 N.E. 913, 14 L. R. A. (N. S.) 172, 14 Ann. Cas. 27. These cases and numerous others have firmly fixed as a rule in this state that when a public offense has been declared by statute in the generic terms of the common law, without more particular definition, and provided punishment therefor, the courts will resort to the common law for the particular acts constituting the offense. It is contended by counsel that at common law the crime in question could be committed with mankind only per anum and that the act shown in this case was never included in the common law offense and is not, therefore, within the statute. Counsel concede the very obvious fact that the act here involved is within the mischief and the reason of the statute, but not being within the words of the statute or, it is claimed, of the offense as it was known at common law, the rule of strict construction of penal statutes it is urged requires its exclusion from the anathema and penalty of the statute. Sherrick v. State (1906), 167 Ind. 345, 354, 79 N.E. 193.

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 2 Rotuli Parl. 50 Edward III, No. 58 (1376) p. 332 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."...