Riley v. Garrett

• Decision Date: 15 October 1963
• Docket Number: No. 22186,22186
• Citation: 219 Ga. 345,133 S.E.2d 367
• Parties: T. D. RILEY, Sr. v. Rebecca GARRETT, Chairman of State Board of Pardons & Paroles, et al.
• Court: Georgia Supreme Court

Page 367

133 S.E.2d 367

219 Ga. 345

T. D. RILEY, Sr. v. Rebecca GARRETT, Chairman of State Board of Pardons & Paroles, et al.

No. 22186.

Supreme Court of Georgia.

Oct. 15, 1963.

Syllabus by the Court

1. The rule of strict construction of criminal statutes requires a judgment that the unnatural copulation between a man and a woman per linguam in vagina does not constitute sodomy as defined by Code § 26-5901.

2. (a) The rulings in headnotes 3 and 4 of the case of Strickland v. Thompson, 155 Ga. 125, 116 S.E. 593, are disapproved because they are unsound and contrary to previous full bench decisions in the particulars discussed.

(b) Mandamus is the only available remedy by which plaintiff can collaterally attack the void judgment which presently bars consideration of his application for parole and also compel the Board of Pardons and Paroles to consider his application for parole.

3. When, as in the instant case, the petition for mandamus shows that the act the performance of which is sought is legally impossible because of an unreversed judgment, and the allegations of the petition are sufficient to show the judgment to be void because it was rendered by a court which was without jurisdiction, the application for mandamus will not fail to state a cause of action because the judgment has not been successfully attacked and declared void prior to the filing of the application for mandamus.

4. (a) Though the petition is not framed with accurate precision, yet its allegations and exhibits when considered together are sufficient as against a general demurrer to apprise the defendants of what they are called upon to defend.

(b) When it becomes material to the interest of a party to do so, a judgment may be held to be void because rendered by a court which was without jurisdiction, and this is true even though the petition contains no prayer that it be so held.

Error is assigned upon the sustaining of a general demurrer to the amended petition which, with exhibits, shows, in essence, that plaintiff, a male person, was convicted and sentenced on two counts of an indictment charging him with having committed sodomy with a named female person; that the sentences on the two counts run consecutively; that plaintiff filed his application to be considered for parole with the Georgia State Board of Pardons and Paroles alleging that he was eligible to be considered for parole because he had served more than one third of the minimum sentence imposed on count 1 and the sentence imposed on count 2 was void because the facts alleged in count 2 do not constitute the crime of sodomy under the laws of Georgia; that the board refused to consider the application for parole on the basis upon which it was submitted; that thereafter the present petition for mandamus was filed to compel the board to consider the application for parole. The petition prays for process, mandamus nisi, and mandamus absolute.

Edward B. Everett, Atlanta, for plaintiff in error.

Eugene Cook, Atty. Gen., Howard P. Wallace, Asst. Atty. Gen., Atlanta, for defendants in error.

MOBLEY, Justice.

1. The writ of error presents the question of whether or not the crime of sodomy as defined by the laws of Georgia includes the unnatural copulation between a man and a woman per linguam in vagina.

'Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.' Code § 26-5901. In Herring v. State, 119 Ga. 709(2), 46 S.E. 876, this court held that sodomy can be committed by two men per os, as well as per anum, since the statutory definition 'contains no limitation as to the organ with which such unnatural connection may be made.' Though the Herring case was not decided by a full bench, one justice having been absent, in White v. State, 136 Ga. 158, 71 S.E. 135, a full bench approved and followed the Herring case doctrine that sodomy as defined by the laws of Georgia may be committed by two men per os as well as per annum. The full bench decision of Thompson v. Aldredge, 187 Ga. 467, 200 S.E. 799, did not hold that the unnatural act of copulation per linguam in vagina is not sodomy under the laws of Georgia; rather, the decision simply followed the statutory definition of sodomy which excludes the possibility of the commission of the crime by two women, though the crime may be accomplished by two men or by a man and a woman. Nevertheless, the latter decision should have been taken as portending a judgment of this court construing Code § 26-5901 as not proscribing any connection per linguam of vagina since there is no apparent reason why the legislature would have intended to punish a man and a woman for doing the same act which would not be punishable if done by two women.

We have not found a decision of this court which is squarely on point with the facts of the case sub judice. However, the case of Comer v. State, 21 Ga.App. 306, 94 S.E. 314, involved precisely the facts here involved. There, two judges, speaking through Presiding Judge Broyles, held that the unnatural act of copulation between a man and a woman per linguam in vagina constitutes sodomy under Code § 26-5901 because the words 'the same unnatural manner' as used in that section refer back to the words 'against the order of nature' and do not require the connection against the order of nature to be by means of the male sexual organ. Judge Bloodworth dissented stating that the rule of strict construction of criminal statutes compels a construction that the carnal knowledge must be 'by man with man, or in the same unnatural manner by man with woman,' that is, the crime of sodomy as defined by the Code cannot be committed without use of the male sexual organ.

The majority judges of the Court of Appeals in the Comer case erred and the dissenting judge was correct because Code § 26-5901 is fairly and reasonably subject to either the construction given it by the majority judges or the construction given it by the dissenting judge and the rule is that when a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused. Gibson v. State, 38 Ga. 571(1); Hill v. State, 53 Ga. 125, 127; Matthews v. Everett, 201 Ga. 730, 735, 41 S.E.2d 148; Glustrom v. State, 206 Ga. 734, 738, 58 S.E.2d 534; Wood v. State, 68 Ga.App. 43(a), 21 S.E.2d 915. Adhering to the rule of strict construction, we adopt the view taken by Judge Bloodworth in the Comer case, supra, that sodomy as defined by Code § 26-5901 must be committed by man with woman in the same unnatural manner as it is by man with man, that is, by use of the male sexual organ either per anum or per os. The fact that the unnatural sexual act here involved is fully as loathsome and disgusting as the acts proscribed by the Code does not justify us in reading into the statutory prohibition something which the General Assembly either intentionally or inadvertently omitted. Thompson v. Aldredge, 187 Ga. 467, 200 S.E. 799.

2. Defendants in error raise several questions as to whether or not plaintiff in error has pursued the proper remedy to raise the question decided in Division 1 of this opinion and, if so, whether he has pursued that remedy effectively. They do not contend that mandamus will not lie to compel members of the State Board of Pardons and Paroles to consider and pass upon the application for parole of a prisoner who has served less than the minimum term of his indeterminate sentence but more than the term required by the rules of the board in order to be eligible for consideration for parole. Indeed, such a contention would not be valid. Matthews v. Everett, 201 Ga. 730, 41 S.E.2d 148. Rather, they urge, in substance, that this court should rule that a judgment of conviction cannot be collaterally attacked by a petition for mandamus on the ground that it is void because the indictment on which it was founded fails to state a crime against the laws of Georgia since this court held in Strickland v. Thompson, 155 Ga. 125, 116 S.E. 593, a habeas corpus proceeding, that the same question could not be raised by a petition for a writ of habeas corpus, the reason for the rule with reference to habeas corpus being the same as to mandamus, to wit: plaintiff can not substitute a collateral attack for a direct attack by demurrer or motion to arrest judgment followed, if necessary, by a writ of error.

The case of Strickland v. Thompson, supra, relied upon by defendants in error, is disapproved in the particulars hereinafter discussed because in those particulars it is unsound and in conflict with previous full bench decisions of this court. We intend to express no disapproval of the principle relied upon in the Strickland case that habeas corpus is not a substitute for writ of error or other remedial process. That principle is sound and is supported by a long line of decisions both within and without this State. Yancy v. Harris, 9 Ga. 535; Lark v. State, 55 Ga. 435; McFarland v. Donaldson, 115 Ga. 567(1), 41 S.E. 691; Harrell v. Avera, 139 Ga. 340 (1), 77 S.E. 160; Wells v. Pridgen, 154 Ga. 397(1), 114 S.E. 355; Etheridge v. Poston, 176 Ga. 388(5), 168 S.E. 25; Kinman v. Clark, 185 Ga. 328, 195 S.E. 166; Sanders v. Aldredge, 189 Ga. 69, 5 S.E.2d 371; Wallace v. Foster, 206 Ga. 561(1), 57 S.E.2d 920; Bradford v. Mills, 208 Ga. 198(4), 66 S.E.2d 58; Fields v. Balkcom, 211 Ga. 797, 89 S.E.2d 189; Crane v. Thompson, 218 Ga. 47(1), 126 S.E.2d 204; Adams v. Balkcom, 218 Ga. 466(1), 128 S.E.2d 510; Peppers v. Balkcom, 218 Ga. 749(1), 130 S.E.2d 709. Our criticism of the Strickland case is directed to the rulings contained in headnotes 3 and 4 wherein the court failed to cite and rely upon controlling Georgia authorities, relying instead upon foreign authorities to the contrary. Those headnotes are as follows: '3. Whether an act charged...