Mitchell v. State
Citation | 95 S.W. 500 |
Parties | MITCHELL et al. v. STATE. |
Decision Date | 21 March 1906 |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from District Court, Jefferson County; W. H. Pope, Judge.
Jim Mitchell and another were convicted of sodomy, and appeal. Reversed.
Howard Martin, Asst. Atty. Gen., for the State.
The charge was sodomy. The court in his charge submitted as a predicate for conviction that one of the parties used the mouth of the other. This is criticised in motion for new trial as not being the law. The same question was discussed in Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833, where it was held that such fact did not constitute the crime of sodomy. See, also, People v. Boyle, 116 Cal. 658, 48 Pac. 800; 1 Wharton's Cr. Law, § 579; McClain's Cr. Law, § 1153; 25 Amer. & Eng. Ency. of Law, p. 1145, and note 5, for authorities.
Without further discussion of the question, we hold that the charge was not only error, but submitted a state of case upon which this crime cannot be predicated.
The judgment is reversed, and the cause remanded.
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