Locke v. State

• Citation: 501 S.W.2d 826
• Parties: Harold LOCKE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
• Decision Date: 02 October 1973
• Court: Tennessee Court of Criminal Appeals

Page 826

501 S.W.2d 826

Harold LOCKE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.

Court of Criminal Appeals of Tennessee.

Oct. 2, 1973.

Certiorari Denied by Supreme Court Nov. 5, 1973.

John D. Webb, James W. Bell, Robert M. Stivers, Jr., Knoxville, for plaintiff in error.

David M. Pack, Atty. Gen., Bart Durham, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Lance D. Evans, Asst. Dist. Atty. Gen., Knoxville, for defendant in error.

OPINION

RUSSELL, Judge.

Harold Locke was charged and convicted of committing a 'crime against nature' as proscribed by T.C.A. § 39--707 against Minnie R. Rogers, and his punishment set at not less than five (5) nor more than seven (7) years in the penitentiary. The State's theory of the case was that Locke entered the apartment of a neighbor, Mrs. Rogers, late at night on the pretext of using the telephone, presented a butcher knife, and forced Mrs. Rogers to submit to two episodes of cunnilingus. This theory is adequately supported by the evidence, if we can say that what the victim testified to described cunnilingus. She was upset during her testimony as to the details of the occurrences, and counsel stopped with only these two cursory descriptions of the sex acts:

'A. * * * I told him I wasn't taking off my clothes, so I took my panties off and he made me get up on the bed, he pulled my legs apart and he started licking on me.

'Q. Did he lick?

'A. Yes, he did.

'Q. Your private parts?

'A. (Crying) That's what he did.'

'Q. You got back on the bed the second time. What did he do the second time?

'A. He opened up my legs like I said and got down right between my legs and just started licking me.

'Q. He licked your private parts again?

'A. Yes.

We hold that this language, with reasonable inferences and in the context of the other details of the attacks, made out cunnilingus.

We next confront the question of whether or not cunnilingus is an act made unlawful as a 'crime against nature' by T.C.A. § 39--707. We hold that it is. Our Supreme Court has heretofore held that fallatio is such a crime. Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340. And, in Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811, our Supreme Court has specifically adopted the liberal Maine doctrine defining crimes against nature as bringing 'all unnatural copulation with mankind or a beast, including sodomy, within its scope', as first pronounced in the Maine case of State v. Cyr, 135 Me. 513, 198 S. 743. Maine has since broadened its case law to specifically hold cunnilingus included. State v. Townsend, 145 Me. 384, 71 A.2d 517. It would be a paradox of legal construction to say that fallatio, 'which it common language means sexual perversion committed with the male sexual organ and the mouth', Sherrill v. State, supra, is proscribed as a crime against nature, but cunnilingus is not. We recognize that many states limit crimes against nature strictly to sodomy; but the weight of authority supports the view which we follow, said to be the better reasoned in 48 Am.Jur. 549, Sodomy § 2. This court used the following language in Stephens v. State, Tenn.Cr.App., 489 S.W.2d 542 (1972):

'* * * In its narrower sense sodomy is the carnal copulation between two human beings per anus, or by a human being in any manner with a beast. In its broader sense it is the carnal copulation by human beings with each other against nature or with a beast in which sense it includes all acts of unnatural copulation. Our Courts probably accept the broader meaning since they have held that the proscribed acts may be per os as well as per anus. * * *'

Finally, T.C.A. § 39--707 is said to be unconstitutionally vague and indefinite. We disagree. See Stephens v. State, supra; State v. Wade M. Williams, an opinion of our Supreme Court filed May 21, 1973, at Jackson; and Charles W. Lane v. State, filed by this court in Knoxville July 23, 1973.

We express no opinion as to the constitutionality of the application of this statute to the private acts of married couples, a question inapplicable to the facts of this case, and not briefed herein. Nor does the case sub judice involve the application of the statute to consenting adults.

Affirmed.

WALKER, P.J., concurs.

GALBREATH, Judge (dissenting).

I must with all due respect for my colleagues in the majority point out that cursory research does not appear to substantiate the holding that 'the weight of authority supports the view' that oral carressing of the vagina, or cunnilingus, is included in the acts proscribed by Section 39--707 of our criminal code which sets out:

'Crimes against nature, either with mankind or any beast, are punishable by imprisonment in the penitentiary not less than five (5) years nor more than fifteen (15) years.'

Less than one half of the jurisdictions in the nation have a statute such as ours ¹ which is a reiteration of the common law definition of sodomy. In at least two states the statute has been declared unconstitutional. See Harris v. State (Alaska), 457 P.2d 638, and Franklin v. State (Fla.), 257 So.2d 21. From a review of the many cases cited in West's Fifth through Seventh Decennial Digests under Key Number 1 for Sodomy, nature and elements of offenses, the courts of six states have ruled that cunnilingus is not a form of sodomy while four states seem to have adopted the view expressed by the majority.

To hold that cunnilingus (an act approved by almost 90% Of adults between 18 and 34 according to an exhaustive study) ² is a crime would seem to me to be judicial legislation of the plainest kind. The writer of this opinion is a strict constructionist. I firmly believe courts must take the law as it is made up for us by legislative bodies and higher judicial authority. One of the most basic canons of judicial behavior is incorporated in the doctrine of stare decisis. Although the issue involved in this case has never been passed on by either our Supreme Court or made the subject of legislation, we are firmly bound by many decisions which hold that when a statute is based on the common law, courts must look to the common law to determine the elements of the offense. See Apple v. Apple, 38 Tenn. 348. Our own Court has emphasized this in pointing out that acts of sexual deviation other than sodomy could never be the subject of prosecution under the statute:

'Since crime against nature means the common law offense of sodomy and the crime is well defined and described at common law, T.C.A. 39--707 is not unconstitutionally vague. There is no danger that some kind of sexual perversion apart from unnatural carnal copulation, unnatural sexual intercourse, could be embraced in the definition and description as plaintiff in error contends.' Stephens v. State, Tenn.Cr.App., 489 S.W.2d 542.

Affirmation of the conviction here for a perversion that did not involve copulation or sexual intercourse, natural or unnatural, is a direct refutation of what this Court said in Stephens, supra, and points up the danger inherent in judicial legislation. Where do we stop if we decree that any form of sexual activity is the equivalent of copulation or sexual intercourse so as to be unlawful if not confined to penis-vaginal connection? Even if we had the authority to legislate on the subject, where would we draw the line? Would we go as far as has the legislature of Indiana which has proscribed masturbation or self pollution ³ and thus condemn a practice that is so universally accepted now as normal under certain circumstances that the mature person who has never engaged in this type of activity would in all likelihood be considered biologically quite abanormal? I, for one, would certainly insist that such legislation proscribe, as do the Penal Codes of New York, Minnesota and Washington, ⁴ what I personally consider the most loathsome, degrading and vile sexual activity imaginable, i.e., necrophilia or sexual intercourse with a dead body. The fact that neither of these acts, the first of which must be conceded to be rather mild and innocuous, the second of which so horrible as to be repugnant to all but the most depraved, have as yet been legislated against in Tennessee might be a source of regret to some, but still the fact exists.

Of course, the act which the defendant committed was criminal in nature and deserving serving of punishment. To force another person by use of a deadly weapon to engage in any activity against his or her will is an aggravated assault and quite probably a violation of our statute against threats and coercion punishable by confinement in the penitentiary for as long as five years. See T.C.A. § 39--4301. Certainly all sexual acts, normal or otherwise, committed by an adult with a child should be punishable, whether force is involved or not. This would perhaps necessitate the overruling of prior decisions of our Supreme Court that a child of tender years can be an accomplice to sodomy or fellatio so that a conviction cannot be predicated on his testimony alone. See Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811.

From what has been pointed out above, it is clear that the laws in this State dealing with sexual perversions are in need of clarification. What is, or is not, illegal sexual activity could be, and in my view should be, set out in clear and precise terms so as to remove the present confusion and uncertainty. Surely we have progressed some from the dim past when Lord Coke spoke of sodomy as being 'a detestable and abominable sin among Christians not to be named,' although affirmation here would seem to be a regression since not even Lord Coke and his fellow English jurists through the centuries have felt it legally permissible to include cunnilingus, or even fellatio, within the definition of...