Munoz v. State

• Decision Date: 10 March 1926
• Docket Number: (No. 9986.)
• Citation: 281 S.W. 857
• Parties: MUNOZ v. STATE.
• Court: Texas Court of Criminal Appeals

281 S.W. 857

MUNOZ v. STATE.

(No. 9986.)

Court of Criminal Appeals of Texas.

March 10, 1926.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Juan Munoz was convicted of sodomy, and he appeals. Reversed and remanded.

Gordon Gibson and John S. Morris, both of Laredo, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

HAWKINS, J.

Conviction is for sodomy with punishment fixed at five years in the penitentiary. The undisputed evidence shows that appellant performed the disgusting, abominable, and nauseating act of using his mouth upon the person of one Meyers.

The point is made that however vile and detestable the act may have been it does not come within the definition of "sodomy" as known to the common law and adopted by legislative enactment in our state. Article 524, P. C. 1925. Such has been the uniform holding of this court. Prindle v. State, 21 S. W. 360, 31 Tex. Cr. R. 551, 37 Am. St. Rep. 833; Lewis v. State, 35 S. W. 372, 36 Tex. Cr. R. 37, 61 Am. St. Rep. 831; Mitchell v. State, 95 S. W. 500, 49 Tex. Cr. R. 535; Harvey v. State, 115 S. W. 1193, 55 Tex. Cr. R. 199. In the case last cited, and which was decided in 1909, Judge Ramsey said in the opinion:

"We think that some legislation should be enacted covering these unnatural crimes."

Many Legislatures have been in session since the court announced the law and made the foregoing observation. The law has not been amended, but instead has been re-enacted in the same language as originally found. The law has been construed by the court contrary to the state's contention and that construction now seems to have legislative sanction.

"When the Legislature revises the statutes of the state, after a particular statute has been judicially construed, without changing that statute, it is presumed that the Legislature intended that the same construction should continue to be applied to that statute." Lewis v. State, 127 S. W. 808, 58 Tex. Cr. R. 351, 21 Ann. Cas. 656.

Black on Interpretation of Laws, p. 368; Sutherland on Statutory Construction, p. 336. Investigation reveals that, in many states where a similar law to ours on the subject of sodomy had received a like construction as ours, the Legislature of those states amended the law and extended the definition beyond the common-law meaning so it would embrace acts shown in the present case. See Kinnan v. State, 125 N. W. 594, 86 Neb. 234, 27 L. R. A. (N....