LeFavour v. State

• Decision Date: 06 October 1943
• Docket Number: A-10183.
• Parties: LEFAVOUR v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

142 P.2d 132

77 Okla.Crim. 383

LEFAVOUR v. STATE.

No. A-10183.

Court of Criminal Appeals of Oklahoma

October 6, 1943

Syllabus by the Court.

1. An information charging sodomy which follows the language of the statute is sufficient without describing the acts which constitute the offense, if the allegations are such that the party charged is enabled to prepare for his trial; and if acquitted or convicted will be able to defend himself against any subsequent prosecution for the same offense.

2. The word "mankind" as used in Okla.Stat.1931, sec 2553, O.S.A.1941, Tit. 21, § 886, includes both male and female.

3. There is no precise age fixed at which children are excluded from giving evidence, under Okla.Stat.1931, sec. 272 O.S.A.1941, Tit. 12, § 385. Intelligence, and not age, is proper test.

4. When objection is made because of incompetency of witness under ten years of age to testify, the best practice is for the court to permit an examination of witness, and after such examination the court should determine whether such witness is competent.

5. The permitting of a witness to testify is within the sound discretion of the trial court and unless this discretion is abused the judgment will not be set aside.

6. There are two modes by which the competency of a witness may be determined, and the party who objects to a witness may, of right, adopt either. He may examine the witness upon his voir dire, or he may prove the alleged incompetency by evidence aliunde.

7. Where a verdict of guilty is returned and the punishment is left to the court by reason of the inability of the jury to agree, defendant was not prejudiced by reason of the fact that in the judgment and sentence it was stated that "the jury assessed his punishment at two years in the state penitentiary," when the statute provided for a punishment not to exceed ten years.

8. Where the evidence is sufficient to sustain the judgment and sentence, the same will not be set aside because such evidence is contradictory.

Appeal from District Court, Creek County; Arthur Cochran, Judge.

Kenneth LeFavour was convicted of sodomy, and he appeals.

Affirmed.

Tom Wallace, of Sapulpa, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Everett S. Collins, Co. Atty., of Sapulpa, for defendant in error.

BAREFOOT Judge.

Defendant, Kenneth LeFavour, was charged in the district court of Creek county with the crime of sodomy, was tried, convicted and by the court sentenced to serve a term of two years in the State Reformatory at Granite, and has appealed.

Defendant's first assignment of error is: "The information in this case charged no offense against the laws of the State of Oklahoma; and the Court erred in overruling the demurrer and subsequent proceedings in opposition to the same."

The statute under which defendant was charged, sections 2553 and 2554, O.S.1931, Tit. 21, O.S.A.1941, §§ 886 and 887, is as follows:

"Every 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.

Any sexual penetration, however slight, is sufficient to complete the crime against nature."

The charging part of the information was: "*** did, in Creek County, State of Oklahoma, on or about the 20th day of January, 1941, commit the crime of sodomy in the manner and form as follows, to-wit: That Kenneth LeFavour in said county and state aforesaid, on the day and year aforesaid, did, knowingly, wilfully, unlawfully, wrongfully, wickedly and feloniously commit the detestable and abominable crime against nature with a certain child, to-wit: Charles Dodson, and did then and there wickedly and unlawfully and feloniously have carnal knowledge of the body of said child, Charles Dodson; contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State."

It is contended by defendant that the allegation above set forth does not comply with section 2883, O.S.1931, Tit. 22, O.S.A.1941 § 401, subd. 2, which is as follows: "A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended."

Defendant admits that the allegation is in the words of the statute, but contends that the defendant "may have done everything substantially charged therein," yet "have been guiltless of any violation of the laws of Oklahoma on such subject." We have found some authorities that tend to bear out the contention of defendant. People v. Allison, 25 Cal.App. 746, 145 P. 539; People v. Carroll, 1 Cal.App. 2, 81 P. 680, 681; People v. Hopwood, 130 Cal.App. 168, 19 P.2d 824. But we find that the great weight of authority and the best reasoned cases are in accord in holding that the allegations of an indictment or information in the same or substantial language of the statute is sufficient. Among these decisions are several from this Court. See, also, 58 C.J. p. 790, § 11; State v. Douglass, 66 Wash. 71, 118 P. 915; People v. Dong Pok Yip, 164 Cal. 143, 127 P. 1031; State v. Morasco, 42 Utah 5, 128 P. 571; Honselman v. People, 168 Ill. 172, 48 N.E. 304; Kelly v. People, 192 Ill. 119, 61 N.E. 425, 85 Am.St.Rep. 323; Commonwealth v. Dill, 160 Mass. 536, 36 N.E. 472; State v. McAllister, 67 Or. 480, 136 P. 354; Ex parte Benites, 37 Nev. 145, 140 P. 436.

In the early case of Ex parte De Ford, 14 Okl.Cr. 133, 168 P. 58, this Court in an opinion by Judge Matson gave a history of this statute, and of the crime of sodomy, and reviews some of the leading decisions on this question. It is unnecessary to quote at length from this case. It may be read by those who desire. The Court comes to the conclusion that under our statute, which was taken from the South Dakota statute, and in conformity with the opinions from many courts of this country, the terms of the statute includes copulation between human beings per os, as well as per anum. This decision is contrary to the rule announced in the case of Koontz v. People, 82 Colo. 598, 263 P. 19, cited by defendant, which seems to be based upon the peculiar wording of the statute of that state. Note 45 L.R.A.,N.S., 473; Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L.R.A.,N.S., 473; State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A.,N.S., 266; State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580; State v. Long, 133 La. 580, 63 So. 180; Herring v. State, 119 Ga. 709, 46 S.E. 876; White v. State, 136 Ga. 158, 71 S.E. 135.

In the case of Borden v. State, 36 Okl.Cr. 69, 252 P. 446, this Court had under consideration one charged with having committed the detestable and abominable crime against nature upon a boy thirteen years of age. It was contended as in the instant case that the information did not state facts sufficient to constitute an offense and was "uncertain and insufficient, in not alleging the particular circumstances of the offense." The allegations of the information in that case were: "the defendant did then and there willfully, unlawfully, and feloniously make an assault upon one Fred Freeman, a male person 13 years of age, and did unlawfully, intentionally, forcibly, and against the order of nature have a venereal affair with the said Fred Freeman, and did commit the abominable and detestable crime against nature."

After quoting the statute, Judge Doyle, who wrote the opinion of the Court, said:

"The statute gives no definition of the crime which the law with due regard to the sentiments of decent humanity has always treated as one not fit to be named. It was never the practice to describe the particular manner or the details of the commission of the act. Even in the time of Blackstone this rule was applied to the common-law crime of sodomy. 4 Bl. Comm. 215.

In the following cases it is held that an indictment or information, charging the commission of the crime against nature, in the language of the statute, is sufficient. Honselman v. People, 168 Ill. 172, 48 N.E. 304; Kelly v. People, 192 Ill. 119, 61 N.E. 425, 85 Am.St.Rep. 323; State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580; Herring v. State, 119 Ga. 709, 46 S.E. 876. ***

It follows from what has been said that the demurrer to the information was properly overruled."

In the case of Roberts v. State, 57 Okl.Cr. 244, 47 P.2d 607, 610, the court again had before it a case of this kind. The witnesses were two small girls, nine and eight years of age. The charging words in the information were that the defendant: "did 'unlawfully and feloniously and against the order of nature have a venereal affair with the said Dora McNeil and did commit the abominable and detestable crime against nature."'

The Court said: "The information is sufficient and the demurrer thereto was properly overruled."

It will be noted that the charge in this case is very similar to the charge in the instant case, only that the act was with a girl, and not a boy. The case was reversed, but it was because of other errors. It has been held that the word "mankind" as used in our statute includes a female and that it is not necessary to allege in the indictment or information the sex of the person on whom the offense was committed, this being immaterial. Lewis v. State, 36 Tex.Cr.R. 37, 35 S.W. 372, 61 Am.St.Rep. 831; Adams v. State, 48 Tex.Cr.R. 90, 86 S.W. 334, 122 Am.St.Rep. 733.

We are, therefore, of the opinion that the court did not err in overruling the demurrer to the information filed in this case.

It is next contended that the court erred in permitting two young boys to testify, one being nine and the other ten years of age. We have had occasion to quote and discuss the statute (272, O.S.1931, Tit. 12,...