Glover v. State, No. 22,300.

• Docket Nº: No. 22,300.
• Citation: 179 Ind. 459, 101 N.E. 629
• Case Date: April 25, 1913
• Court: Supreme Court of Indiana

179 Ind. 459
101 N.E. 629

GLOVER
v.
STATE.

No. 22,300.

Supreme Court of Indiana.

April 25, 1913.

Appeal from Circuit Court, Howard County; B. C. Moon, Special Judge.

Otho Glover was convicted of crime, and he appeals. Affirmed.

Blacklidge, Wolf & Barnes, of Kokomo, for appellant. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, Deputy Atty. Gen., of Indianapolis, for the State.

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 question involved, and thereby determine whether appellant was lawfully convicted, that counsel, who are serving without compensation, present this appeal for their client.

[1] A motion to quash that count of the

[101 N.E. 630]

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 (Burns 1908, § 2040).

The crime intended to be charged by the affidavit is defined by section 2374, Burns 1908 (Acts 1905, p. 694, § 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, Cr. Law, 50; Crown, Cir. Comp. 86; 4 Blackstone, 215, 216; 20 Encyc. of Pl. & Pr. 274; 36 Cyc. 503; 1 Whart. Cr. 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, Cr. R. (N. Y.) 200; Com. v. Dill (1894) 160 Mass. 536, 36 N. E. 472;State v. Romans (1899) 21 Wash. 284, 57 Pac. 819;Bradford v. State (1893) 104 Ala. 68, 16 South. 107, 53 Am. St. Rep. 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. Rep. 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.”...