Sledge v. State

• Decision Date: 30 October 1942
• Docket Number: 31452.
• Parties: SLEDGE v. STATE.
• Court: Nebraska Supreme Court

6 N.W.2d 76

142 Neb. 350

SLEDGE v. STATE.

No. 31452.

Supreme Court of Nebraska

October 30, 1942

Syllabus by the Court.

1. By section 28-920, Comp.St.1929, the legislature extended the definition of the crime of sodomy so as to include both per anum and per os involvement.

2. "Whoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender." Comp.St.1929, sec. 28-201.

3. A variance in the proof from an indictment or information for an offense as to name or description of any person described or the description of any matter or thing named, is not ground for acquittal unless the trial court shall find that such variance is material to the merits of the case or may be prejudicial to the defendant.

4. It is not prejudicially erroneous to allow an amendment to an information where there is a variance between the information and the proof as to a matter of description, where it would have been proper to submit the case to a jury without amendment notwithstanding the variance.

5. Where time is not an ingredient of a crime, a variance between the information and the proof is not fatal if the date proved is within the statute of limitations.

6. The date of an offense is descriptive within the meaning of section 29-1502, Comp.St. 1929.

C E. Walsh, of Omaha, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and John H. Comstock, Asst. Atty Gen., for defendant in error.

Heard before SIMMONS, C. J., and EBERLY, CARTER, MESSMORE, and YEAGER, JJ.

YEAGER Justice.

This case comes to this court on petition in error from the district court for Lancaster county, Nebraska.

The plaintiff in error, who will be hereinafter referred to as defendant, was prosecuted on an information filed by the county attorney in the name of the State of Nebraska for the crime of sodomy. He was tried to a jury, convicted as charged, and sentenced to serve a term of three years in the state penitentiary.

As grounds for reversal of the verdict and sentence the defendant assigns numerous errors.

The information in its original form charged in terms agreeable to the statute that the defendant committed the crime of sodomy on August 10, 1941.

The defendant contends that, assuming that the act complained of was performed, no crime was committed since such acts are not denounced as crimes by our statutes. The act complained of involved engagement of the mouth of defendant with the sexual organ of a thirteen-year-old boy who will be referred to as complaining witness. Defendant insists that the involvement must be of the sexual organ per anum with another human being; therefore, this claimed act having been per os, there was no crime.

Such an act committed prior to the enactment of our present statute was not a crime, since the earlier act contemplated only the common-law crime of sodomy. Kinnan v. State, 86 Neb. 234, 125 N.W. 594, 27 L.R.A.,N.S., 478, 21 Ann.Cas. 335.

Section 28-920, Comp.St.1929, which is the statute under which the defendant was prosecuted, and which follows, materially differs from the earlier statute and includes acts not contemplated thereby or by the common law:

"Whoever has carnal copulation with a beast, or in an opening of the body except sexual parts with another human being, shall be guilty of sodomy and shall be imprisoned in the penitentiary not more than twenty years."

A reading of the statute clearly discloses that this contention of the defendant that the statute contemplates only per anum involvement is baseless. Without doubt the legislature meant, as is clearly indicated by the words used, an opening other than sexual parts.

This court has not previously passed upon this question, but similar statutes have been before the courts of other states, and we observe in the decisions no good and sufficient reason for departing from the letter and evident intent of the legislature in the enactment of this statute. See Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L.R.A.,N.S., 473; State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A.,N.S., 266; 8 R.C.L. 334, sec. 365.

The defendant contends further that the evidence does not sustain the charge, since the evidence of the state indicates that it was the sexual organ of the complaining witness that was involved, and that there was no involvement of any sexual organ of the defendant.

From a careful consideration it is felt that this interpretation placed upon the statute must be accepted, and that under the statute taken alone the defendant has not been guilty of the crime of sodomy. But we are not permitted to consider it alone. The alleged acts of the defendant and the complaining witness must be construed with reference to this statute, and also with reference to section 28-201, Comp.St.1929, which is as follows:

"Whoever aids, abets or procures another to commit any offense may be prosecuted and punished as if he were the principal offender."

This statute has been held valid by the decisions of this court. Stumpff v. State, 122 Neb. 49, 239 N.W. 212; Carlsen v. State, 127 Neb. 11, 254 N.W. 744; Baskins v. State, 138 Neb. 334, 293 N.W....