Mitchell v. State

Citation95 S.W. 500
PartiesMITCHELL et al. v. STATE.
Decision Date21 March 1906
CourtCourt 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.

DAVIDSON, P. J.

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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16 cases
  • State v. Dietz
    • United States
    • Montana Supreme Court
    • August 4, 1959
    ...the Aronson case. The Legislature, at the first opportunity, passed a new act omitting some of the provisions condemned by this court in the Mitchell case, and in no sense acquiesced in it. It too was by a divided court and this court will more readily reexamine a legal question under such ......
  • Barton v. State
    • United States
    • Georgia Court of Appeals
    • June 1, 1949
    ...v. Poindexter, 133 Ky. 720, 118 S.W. 943; Prindle v. State, 31 Tex.Cr.R. 551, 21 S.W. 360, 37 Am.St.Rep. 833; Mitchell v. State, 49 Tex. Cr. R. 535, 95 S.W. 500; Harvey v. State, 55 Tex.Cr.R. 199, 115 S.W. 1193; Lewis v. State, 36 Tex.Cr.R. 37, 35 S.W. 372, 61 Am. St. Rep. 831; Davis v. Bro......
  • State v. Altwatter
    • United States
    • Idaho Supreme Court
    • May 9, 1916
    ... ... "A ... penetration of the mouth is not sodomy." (2 Bishop's ... Crim. Law, pp. 1193, 1194; Russell on Crimes, p. 693; ... Wharton's Criminal Law, pp. 575--579; McClain's Crim ... Law, p. 1153; Prindle v. State, 31 Tex. Cr. 551, 37 ... Am. St. 833, 21 S.W. 360; Mitchell v. State, 49 Tex ... Cr. 535, 95 S.W. 500; People v. Boyle, 116 Cal. 658, ... 48 P. 800; Kinnan v. State, 86 Neb. 234, 125 N.W ... 594, 21 Ann. Cas. 335, 27 L. R. A., N. S., 478; Bailey v ... State, 57 Neb. 706, 73 Am. St. 540, 78 N.W. 284; ... Harvey v. State, 55 Tex. Cr. 199, 115 S.W ... ...
  • Barton v. State
    • United States
    • Georgia Court of Appeals
    • June 1, 1949
    ... ... expanding the definition, leaving that function to repose ... within the proper power of the legislatures, where we assume ... it belongs. See Commonwealth v. Poindexter, 133 Ky ... 720, 118 S.W. 943; Prindle v. State, 31 Tex.Cr.R ... 551, 21 S.W. 360, 37 Am.St.Rep. 833; Mitchell v ... State, 49 Tex.Cr.R. 535, 95 S.W. 500; Harvey v ... State, 55 Tex.Cr.R. 199, 115 S.W. 1193; Lewis v ... State, 36 Tex.Cr.R. 37, 35 S.W. 372, 61 Am.St.Rep. 831; ... Davis v. Brown, 27 Ohio St. 326 (definition was ... expanded following this decision by statute); Ausman v ... Veal, 10 ... ...
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