People v. Hodgkin

• Decision Date: 03 December 1892
• Citation: 94 Mich. 27,53 N.W. 794
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HODGKIN.

53 N.W. 794

94 Mich. 27

PEOPLE v. HODGKIN.

Supreme Court of Michigan

December 3, 1892

Error to circuit court, Sanilac county; WATSON BEACH, Judge.

William Hodgkin was convicted of sodomy, and appeals. Reversed.

J B. Houck and Charles H. McGinley, for appellant.

A A. Ellis, Atty. Gen., and Wm H. Burgess, Pros. Atty., for the People.

MONTGOMERY J.

The respondent was informed against under section 9292, How St and convicted of the crime of sodomy. The circuit judge instructed the jury that the evidence of the offense was complete upon proof of penetration only. The defendant assigns error upon this instruction, which assignment presents the only question which we deem it necessary to consider. The statute does not, in terms, define what shall constitute the offense. There has been some disagreement in the cases upon the question of whether proof of emission is necessary to establish the offense at the common law; the two offenses of rape and sodomy having been regarded by some courts as kindred, so far as relates to this question. But, as stated by Mr Bishop, "though writers generally assume that rape and sodomy stand on common ground, reflection may suggest differences." 2 Bish. Crim. Law, � 1127. In England the question was not fully settled until 1781, when it was held that proof of emission was necessary to the consummation of the offense. Hill's Case, 1 East, P. C. 439. See Stafford's Case, 12 Coke, 37. The American cases are not uniform. The following cases support the claim of the prosecution that proof of penetration only is necessary: Com. v. Thomas, 1 Va. Cas. 307; Comstock v. State, 14 Neb. 205, 15 N.W. 355; Pennsylvania v. Sullivan, Add. 143. In North Carolina and Ohio the doctrine that emission is necessary obtains. State v. Gray, 8 Jones, (N. C.) 170; Williams v. State, 14 Ohio, 222. The question had never been decided by the supreme court of this state. But the legislature in 1841 enacted a statute, the second section of which reads: "Whereas, upon the trials for the crimes of buggery and rape, * * * offenders may escape by reason of the difficulty of the proof which has been required of the completion of those several crimes, for a remedy thereof, be it enacted, that it shall not be necessary, in any of these cases, to prove the actual emission of seed, in order to constitute a carnal knowledge, but that carnal knowledge shall be deemed complete upon proof of penetration only." By Rev. St. 1846, p. 730, this statute was repealed. A subsequent statute has been...