Murray v. State, No. 29475

• Docket Nº: No. 29475
• Citation: 143 N.E.2d 290, 236 Ind. 688
• Case Date: June 17, 1957
• Court: Supreme Court of Indiana

Page 290

143 N.E.2d 290 236 Ind. 688 Raymond MURRAY, Appellant,
v.
STATE of Indiana, Appellee. No. 29475. Supreme Court of Indiana. June 17, 1957.

[236 Ind. 689] James C. Cooper, Rushville, Robert S. Baker, Public Defender of Indiana, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., for appellee.

[236 Ind. 690] PER CURIAM.

On August 13, 1953, appellant, without benefit of counsel, entered a plea of guilty to a charge by affidavit that he committed the 'abominable and detestable crime against nature with a beast,' and was sentenced under Acts 1905, ch. 169, § 473, p. 584, being § 10-4221, Burns' 1956 Replacement, to the Indiana State Prison for a term of not less than 2 nor more than 15 years. ¹

Page 291

On January 20, 1956, appellant filed a petition for writ of error coram nobis which, as amended, alleged, in pertinent parts, the following:

'Petitioner further alleges that at the time he entered the plea of guilt he was not represented by counsel. The petitioner was an uneducated layman, not familiar with legal terms, definitions of procedure.

'Petitioner further alleges that said affidavit to which this petitioner entered a plea of guilty affirmatively shows on its face that the petitioner committed 'the abominable and destable crime against nature with a beast.' * * *

'Petitioner further alleges that the overt act of which the defendant was guilty was with a fowl, to-wit: chicken, and not a beast. That such an act with a fowl, to-wit: chicken, is not a criminal violation within the Statutory Definition of the crime of Sodomy as defined by Section 10-4221, Burns Indiana State Annotated, 1933, 1942 Replacement, upon which said affidavit was based.

'Petitioner further alleges that the above said facts were not called to the attention of the trail court at the time the petitioner entered the plea of guilt and that had said facts been called to the attention of the trial court at the time this petitioner entered his plea of guilt the trial court would have found this petitioner not guilty of the offense in said affidavit.'

[236 Ind. 691] To this amended petition the State filed a demurrer on the ground that the writ of error coram nobis did not state 'facts sufficient to constitute legal grounds for vacating judgment.' The demurrer was sustained and from a judgment on appellant's refusal to plead further, this appeal is prosecuted. ²

The sole error assigned is that the judgment of the trial court in denying appellant's amended petition for the writ is contrary to law.

Appellant asserts that the commission of the act with which he was charged was not a crime within the meaning of § 10-4221, supra, because a chicken is not a 'beast' within the meaning of such statute.

We concur with appellant that:

'It is a fundamental rule in the construction of statutes that penal statutes must be construed strictly, or, as is otherwise stated, strictly construed against the state. The rule of strict construction means that such statutes will not be enlarged by implication or intendment beyond the fair meaning of the language used, and will not be held to include offenses and persons other than those which are clearly described and provided for although the court may think the legislature should have made them more comprehensive.' Kelley v. State, 1954, 233 Ind. 294, 298, 119 N.E.2d 322, 324.

However, this court has recognize that the Legislature intended to include within the sodomy statute all acts which are included in the definition of 'crime against nature.'

In Glover v. State, 1913, 179 Ind. 459, at pages 463 and 465, 101 N.E. 629, at page 631, 45 L.R.A.,N.S., 473, it is said:

'There can be no doubt of the soundness of the general rule that penal statutes are to reach no further in meaning than the fair and plain import [236 Ind. 692] of their words, and that acts within the mischief and reason, but not within the letter, are to be excluded. But the crime of sodomy has always been deemed a very pariah of...