Kinnan v. State

• Citation: 125 N.W. 594,86 Neb. 234
• Decision Date: 10 March 1910
• Docket Number: No. 16,151.,16,151.
• Parties: KINNAN v. STATE.
• Court: Supreme Court of Nebraska

86 Neb. 234

125 N.W. 594

KINNAN

v.STATE.

No. 16,151.

Supreme Court of Nebraska.

March 10, 1910.

Syllabus by the Court.

The act charged in the indictment does not constitute the infamous crime against nature prohibited by section 205a of the Criminal Code.

Sufficiency of the evidence to identify the defendant as the person who performed the acts complained of questioned.

The admission of evidence of the finding of footprints in the cornfield, where it is alleged the unlawful act occurred, not shown to have been made by any shoes ever worn by the defendant, and not connected with him in any way except that they led in the direction of his home, held reversible error.

Error to District Court, Antelope County; Welch, Judge.

Jess Kinnan was convicted of crime, and he brings error. Reversed and remanded.Wm. V. Allen, C. H. Kelsey, N. D. Jackson, and W. L. Dowling, for plaintiff in error.

W. T. Thompson, Geo. W. Ayres, and M. F. Harrington, for the State.

BARNES, J.

Jess Kinnan, hereafter called the defendant, was tried in the district court of Antelope county upon the charge of committing the infamous crime against nature, defined in section 205a of the Criminal Code (Comp. St. 1909; Ann. St. § 2356) by penetration per os. He was convicted, was sentenced to the penitentiary for a term of 10 years, and has brought the case here for review. Before going to trial defendant, by motion and demurrer, challenged the sufficiency of the information on the ground that the facts set forth therein did not constitute a violation of the section of the Criminal Code above cited, and now strenuously renews that contention. The identical question here presented has been determined by the supreme judicial tribunals of many of our sister states. In People v. Boyle, 116 Cal. 658, 48 Pac. 800, under a similar statute, the defendant was convicted of a felony which was technically designated in the information as an assault with intent to commit “the infamous crime against nature.” The Supreme Court of that state held that the facts of the case, which were the same as in the case at bar, did not make out the offense of which the defendant had been convicted. By the statutes of Texas, “the abominable and detestable crime against nature” is made a felony, and the Supreme Court of that state has many times decided that such facts as shown in this case do not constitute that crime. Mitchell v. State, 49 Tex. Cr. R. 535, 95 S. W. 500;Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833;Lewis v. State, 36 Tex. Cr. R. 37, 35 S. W. 372, 61 Am. St. Rep. 831;Harvey v. State, 55 Tex. Cr. R. 199, 115 S. W. 1193. In Commonwealth v. Poindexter (Ky.) 118 S. W. 943, the Supreme Court of Kentucky considered this question, and in a very able opinion reached the same conclusion. This view of the question was adopted by the Supreme Court of Ohio in Davis v. Brown, 27 Ohio St. 326, and thereafter the Legislature of that state enacted a statute to cover such a case. In Estes v. Carter, 10 Iowa, 400, a like construction of a similar statute was adopted, and thereupon the Legislature passed an act to supply the defect in the criminal law. Iowa Code Supp. 1907, § 4937a. The Supreme Court of Indiana in Ausman v. Veal, 10 Ind. 355, 71 Am. Dec. 331, adopted this rule, and such has always been the understanding of the text-writers. See 2 Bishop's New Crim. Law, § 1193; Am. & Eng. Ency. of Law, 1145; 2 Russ. Crimes, 698; McLain's Crim. Law, § 1153; and Wharton on Criminal Law, § 597. As opposed to this overwhelming weight of authority counsel for the state have directed our attention to Means v. State, 125 Wis. 650, 104 N. W. 815, and Honselman v. People, 168 Ill. 172, 48 N. E. 304. In the Wisconsin case the Supreme Court held that an act similar to the one in question in this case was a violation of section 4591 of the statutes of that state, but this statute specifically includes the act charged here, hence the case is no authority on the point.

From the foregoing it clearly appears that the ruling in that case is of no assistance to us in the case at bar. Counsel, however, ask us to adopt the extraordinary language of the Wisconsin court, that “there is sufficient authority to sustain a conviction in such a case, and, if there were none, we should feel no hesitancy in placing an authority upon the books.” We cannot approve of this language. There is no doubt but that the Wisconsin case was correctly decided, and it was unnecessary for the court to use the language above quoted. It is not within the powers of the judicial branch of the government to place rules upon the books, or enact laws to define or punish crime. Those matters are wholly within the province of the Legislature, and we are satisfied that the Wisconsin court did not intend its language to be understood as it is now interpreted by counsel for the state. In the Illinois case it appears that the Legislature of that state, as a part of its Criminal Code (Hurd's Rev. St. 1908, c. 38, § 279), enacted the following: “Every person convicted of the crime of murder, rape, kidnapping, willful and corrupt perjury or subornation of perjury, arson, burglary,robbery, sodomy, or other crime against nature, incest, larceny, forgery, counterfeiting, or bigamy, shall be...