Perkins v. State of North Carolina

Decision Date05 October 1964
Docket NumberCiv. No. 2234.
Citation234 F. Supp. 333
CourtU.S. District Court — Western District of North Carolina
PartiesMax Doyle PERKINS, Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

William Haywood Bobbitt, Jr., Charlotte, N. C., and James P. Erwin, Jr., Asheville, N. C., for petitioner.

Theodore C. Brown, Jr., Staff Atty., Office of Atty. Gen. of North Carolina, Raleigh, N. C., for respondent.

CRAVEN, Chief Judge.

On January 8, 1962, Max Doyle Perkins and Robert Eugene McCorkle were jointly indicted by the grand jury of Mecklenburg County, North Carolina. It was charged that they "did unlawfully, willfully, maliciously and feloniously commit the abominable and detestable crime against nature with each other." McCorkle pleaded nolo contendere, received a sentence of five to seven years, served a portion of it, and has been released. Perkins, after conviction by a jury upon his plea of not guilty, was sentenced to a term of not less than twenty nor more than thirty years. The disparate sentences were passed by the same judge.


Perkins asked the Superior Court of North Carolina to review the constitutionality of his trial pursuant to the Post-Conviction Hearing Act of North Carolina.1 His petition was denied. Although there is some question as to whether or not he presented the same alleged constitutional defects to the superior court that are now presented to this court, there was enough in his petition to afford the state court the opportunity to pass upon the matters of which he now complains. Since he apparently was not afforded counsel in the state post-conviction proceeding, despite the plain provision of the North Carolina statute for the appointment of counsel,2 any doubt as to the technical sufficiency of his petition should be resolved in his favor. There has been sufficient exhaustion of state remedies to make it appropriate for a federal court to entertain Perkins' petition for writ of habeas corpus.3


Perkins was convicted of a violation of N.C.G.S. § 14-177, which reads in its entirety as follows:

"If any person shall commit the abominable and detestable crime against nature, with mankind or beast, he shall be imprisoned in the State's prison not less than five nor more than sixty years."

The statute is copied from the first English statute on the subject passed in the year 1533 during the reign of King Henry VIII. It was adopted in North Carolina in 1837 with only one difference. The words "vice of buggery" which appeared in the ancient English statute were omitted and instead there was substituted the delightful euphemism "crime against nature, not to be named among Christians." It then read in its entirety:

"Any person who shall commit the abominable and detestable crime against nature, not to be named among Christians, with either mankind or beast, shall be adjudged guilty of a felony, and shall suffer death without the benefit of clergy."

By 1854 Christians had become more articulate and less clergical. The phrases "not to be named among Christians" and "without benefit of clergy" were deleted from the statute. Finally, in 1869, the death penalty was limited to murder and the like. The punishment for crime against nature was limited to sixty years maximum. Since 1869 the statute has remained unchanged — in itself a shocking example of the unfortunate gulf between criminal law, and medicine and psychiatry.

The evidence against Perkins tended to show that his criminal conduct consisted of fellatio.4

What is "the crime against nature"? The statutory history shows that beyond question it was "buggery" at common law. According to the great weight of authority, as well as the far better reasoned cases, the conduct of Perkins (per os) was not buggery at common law.5 Yet, in State v. Fenner, 166 N.C. 247, 80 S.E. 970, (1914), the North Carolina Supreme Court misinterpreted both the statute and the common law in holding that the statute covered sexual acts per os;6 and as recently as 1961 the court has affirmed Fenner and said that since the Legislature has failed to act to amend the statute the court's interpretation must be indicative of the legislative intent.7

If the statute were a new one, it would be obviously unconstitutional for vagueness. The former concern for the feelings of those reading the statute has yielded to the necessity that an indicted person know of what he is charged. Euphemisms have no place in criminal statutes. But this is not a new statute, and it has been interpreted many times by the North Carolina Supreme Court.8 Although the court has said it means much more than it meant at common law or as an enactment during the reign of Henry VIII, its decisions have made equally clear that crime against nature does not embrace walking on the grass.

In Erie Railroad v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), it was said:

"Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern."

In Musser v. Utah, 333 U.S. 95, 98, 68 S.Ct. 397, 398, 92 L.Ed. 562 (1948), the Court said:

"What the statutes of a state mean * * * are questions on which the highest court of the state has the final word. The right to speak this word is one which * * * we should scrupulously observe."

The obviously vague statute must be read as if it incorporates the judicial interpretations placed upon it by the Supreme Court of North Carolina,9 and with those interpretations added, it is not unconstitutionally vague. Furthermore, this court is bound by the interpretations of the North Carolina Supreme Court including the one that conduct such as Perkins' (per os) was within the prohibition of the statute.


The prohibition of cruel and unusual punishment contained in the Eighth Amendment of the United States Constitution applies to the states through the due process clause of the Fourteenth Amendment.10

In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1957), the Court said "the exact scope of the constitutional phrase `cruel and unusual' has not been detailed by this Court. * * * The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." And in Weems v. U. S., 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), the Court said that the inhibition was directed "against all punishments which, by their excessive length or severity, are greatly disproportioned to the offenses charged."

Imprisoning Perkins for his homosexual conduct is not unlike putting a person in jail for being addicted to the use of narcotics, as was done in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In that case the United States Supreme Court held that the statute inflicted a cruel and unusual punishment, but it is important to note that the statute had been interpreted to condemn the status of narcotic addiction as a criminal offense. Perkins was convicted of an overt act — a distinction more important to law than medicine and one which conveniently ignores causative factors of homosexuality — but nevertheless a legally valid distinction.

Does the mere duration of sentence — twenty to thirty years — make it "cruel and unusual" within the prohibition of the Constitution? The Attornel General of North Carolina, although requested to do so, has not called to the court's attention any sentence under this statute in exceess of five years where the offenders were both adult males.11 It may be judicially noticed, certainly within the last decade, that sentences imposed on adult homosexual offenders in the North Carolina courts, absent special circumstances, seldom if ever exceeded the five year statutory minimum. The moderation of North Carolina judges in this respect is probably the reason why the Legislature has not long since felt required to amend the statute. If the usual five year sentence is "right", then twenty to thirty years is "wrong". Certainly twenty to thirty years is unusual. There can be no justification for such disparity of punishment.12 But the sentence is within the astounding statutory limit of "not less than five nor more than sixty years", and it is well settled that within statutory limits even the harshest sentence, absent exceptional circumstances, is not cruel and unusual within the meaning of the Constitution.13

Is such an exceptional circumstance present here? The co-defendant in the same indictment who pleaded nolo contendere was sentenced to five to seven years; whereas Perkins who pleaded not guilty and subjected the court to affording him trial by jury was sentenced to twenty to thirty years. It is easy to suspect that Perkins may have been punished for insisting upon his right to trial by jury. Indeed, court-appointed counsel concedes that Perkins may have been punished in part for pleading not guilty. But the inference is of doubtful validity. Perkins and his co-defendant, McCorkle, were apparently quite different in background and in previous homosexual conduct. Although the difference is not enough to justify the extreme disparity of punishment, it is enough to cast doubt upon what otherwise might be inferred: that his not guilty plea inconvenienced the court and that he was punished for it.

It is only fair to say that many judges favor lighter sentences for those who plead guilty and heavier sentences for at least some of those who insist on a trial. No one who has ever sat a trial bench can deny that there is some frustration for the judge required to conduct a trial, the result of which, in his judgment, is a foregone conclusion. And it has been said that criminal dockets cannot be kept current unless there is "some...

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  • Patton v. State of North Carolina, Civ. No. 2397.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • July 20, 1966
    ......'s fear of the hazards of a new trial is graphically stated in the following letter which came as a sequel to the issuance of the writ in Perkins v. State of North Carolina, 234 F.Supp. 333 (W.D.N.C.1964). The successful petitioner wrote me, in part: (spelling his, italics mine). ......
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    • November 14, 1969
    ...federal courts defer to the authority of state courts to speak with finality on state law. See, e. g., Perkins v. North Carolina, 234 F.Supp. 333, 336 (W.D. N.C.1964). Unfortunately, no other cases that narrow the statute's terms enough to save it have been called to our attention, and we h......
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    ...(cf. Hedrick v. United States, 10 Cir., 357 F.2d 121, 124; State v. Coutcher, 198 Kan. 282, 424 P.2d 865; Perkins v. State of North Carolina, D.C., 234 F.Supp. 333, 337; see Cruel Punishment--Length of Sentence, Ann., 33 A.L.R.3d 335, 359--365, In United States v. Wiley, 7 Cir., 278 F.2d 50......
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