Slusser v. State

• Decision Date: 21 December 1949
• Docket Number: No. 24542,24542
• Citation: 232 S.W.2d 727,155 Tex.Crim. 160
• Parties: SLUSSER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 727

232 S.W.2d 727

155 Tex.Crim. 160

SLUSSER v. STATE.

No. 24542.

Court of Criminal Appeals of Texas.

Dec. 21, 1949.

On Motion to Reinstate Appeal Feb. 8, 1950.

On Rehearing June 23, 1950.

Rehearing Denied Oct. 11, 1950.

Murphy & Smith, San Angelo and Clifton Tupper, San Angelo, for appellant.

Martelle McDonald, District Attorney, Odessa, George T. Thomas, Special Prosecutor, Big Spring, Elton Gilliland, County Attorney, Big Spring, George P. Blackburn, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The record in this case fails to show that the appellant was sentenced. Having no final judgment in the case, this Court is without jurisdiction to consider it.

The appeal is dismissed.

On Motion for Rehearing.

WOODLEY, Judge.

The appeal having been re-instated, the opinion reversing the judgment of the trial court and ordering the prosecution dismissed is withdrawn, and the following substituted therefor.

Appellant was convicted of the offense of sodomy under the provisions of art. 524, Vernon's Ann.P.C., the indictment charging the offense under that portion of the article which provides that whoever 'shall voluntarily permit the use of his own sexual parts in a lewd or lascivious manner by any minor, shall be guilty of sodomy.'

Appellant assigns as reversible error:

(1) The overruling of his motion to quash the indictment, the grounds being that the allegations thereof are:

(a) vague and indefinite;

(b) fail to allege the manner and means used by appellant;

(c) are but conclusions, and are duplicitous.

(2) The insufficiency of the evidence.

(3) The court's refusal to charge that the minor witness was an accomplice as a matter of law.

Prior to the amendment of art. 524, P.C., by Acts of the 48th Leg., Ch. 112, the crime of sodomy was not defined, except as 'the abominable and detestable crime against nature.'

A punishment was provided by the statute for any person who committed such crime of sodomy 'with mankind or beast.'

In construing such statute, resort was had to the elements of the offense of sodomy at common law, and convictions under the statute were upheld where the facts alleged and proved constituted sodomy at common law. See Cross v. State, 17 Tex.App. 476; Ex Parte Bergen, 14 Tex.App. 52.

On the other hand acts of lust, though including the element of carnal copulation, were held insufficient to constitute the offense, unless such acts constituted sodomy as known to the common law. See Prindle v. State, 31 Tex.Cr.R. 551, 21 S.W. 360, 37 Am.St.Rep. 833; Mitchell v. State, 49 Tex.Cr.R. 535, 95 S.W. 500; Harvey v. State, 55 Tex.Cr.R. 199, 115 S.W. 1193; Munoz v. State, 103 Tex.Cr.R. 439, 281 S.W. 857.

Upon the taking effect of the amendment, art. 524, Vernon's Ann.P.C., the offense of sodomy was for the first time fully defined by statute, the elements of the offense including in addition to the elements of sodomy as known to the common law, other acts of carnal copulation and declaring any person 'who shall voluntarily permit the use of his own sexual parts in a lewd or lascivious manner by any minor,' to be likewise guilty of sodomy.

The latter provision departs entirely from the definition and essential elements of sodomy at common law 'carnal copulation' not being an absolute requirement.

The legislature had the authority to declare the doing of certain acts to constitute the offense of sodomy, and to ignore, if they saw fit, the common law elements of the offense. See Wharton's Criminal Law, Vol. 1, Sec. 758, citing State v. Vicknair, 52 La.Ann. 1921, 28 So. 273.

The name given to an offense by the legislature does not alter its constituent elements.

In order to ascertain what is an offense, we do not look to its name, but to the act or omission forbidden in the language of the statute.

The legislature had the authority to give to the forbidden acts such name or names as it deemed proper, or to omit to name the offense altogether. See Hardin v. State, 39 Tex.Cr.R. 426, 46 S.W. 803.

The words 'lewd' and 'lascivious' are not defined in the statutes and must therefore be given their ordinary meaning to be arrived at in part by a determination of the legislative intent in the use of the words in the particular statute.

As so determined, the term 'lewd or lascivious manner' means in a vulgar manner inciting sexual desire or appetite, and connotes lust, indecency and sexual indulgence. The words 'lewd' and 'lascivious' are similar in meaning and signify that form of immorality which has relation to sexual impurity. See Vol. 24, Words and Phrases, Perm. Ed., p. 257; Swearingen v. U. S., 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765.

We hold that the statute, as amended, is valid and that a violation of the provision with which we are here dealing constitutes guilt of the new offense now named sodomy.

A requirement of the statute is that an indictment charging a person with a felony must set forth the offense in plain and intelligible words. See art. 396, C.C.P.

The indictment here follows closely the language of the statute.

Such allegations sufficiently charge the essential act of appellant in voluntarily permitting the use of his own sexual parts by the minor, with the purpose that the minor use such parts in a vile and vulgar manner inciting sexual desire or appetite.

A more detailed description of the manner of use of such private parts by the minor would require the State to allege its evidence in detail and such detail is not required in order to protect appellant's rights in pleading a conviction herein as former jeopardy, in the event of a future charge growing out of the same transaction, or in preparing his defense against the charge in the indictment.

For a conviction, the State relies alone upon the testimony of the ten-year old boy.

Appellant contends that the undisputed facts show the boy to be an accomplice, and therefore, in the absence of any corroboration the evidence is insufficient to sustain the conviction.

The court submitted to the jury as an issue of fact the question of whether or not the boy was an accomplice, and instructed the jury to acquit appellant unless they found beyond a reasonable doubt that he was not an accomplice.

The record shows without dispute that the ten-year old boy willingly took part in and consented to the indecent acts of appellant.

The court took cognizance of the uniform holdings of this court that one so consenting and acting is an accomplice under the law, and his testimony must therefore be corroborated. See Medis v. State, 27 Tex.App. 194, 11 S.W. 112, 11 Am.St.Rep. 192.

But the charge clearly reveals that the court was of the opinion that an exception to such rule exists in the case of a young boy between the ages of nine and thirteen years, by reason of the provisions of art. 30, P.C.

This article remains in effect and was not repealed by the Acts of the 48th Legislature known as the Juvenile Act, art. 2338-1 Vernon's Ann.Civ.St. See Dearing v. State, Tex.Cr.App., 204 S.W.2d 983; Santillian v. State, 147 Tex.Cr.R. 554, 182 S.W.2d 812, 159 A.L.R. 1098, and Head v. State, 147 Tex.Cr.R. 594, 183 S.W.2d 570.

Article 30, P.C., provides that no child between such ages is criminally responsible for any offense committed unless it shall appear that such child 'had discretion sufficient to understand the nature and illegality of the act.'

In appellant's trial, the jury was instructed that unless they found beyond a reasonable doubt that the boy was within such age limits, and did not have discretion sufficient to understand the nature and illegality of the act charged, he was an accomplice witness.

In support of such submission the State calls attention to the opinion of this court in Holmes v. State, 99 Tex.Cr.R. 270, 269 S.W. 95, and a companion case of the same style, Holmes v. State, 99 Tex.Cr.R. 298, 269 S.W. 96.

In the first of the Holmes cases, the tenor eleven-year old boy offered by resistance to the assault upon him, and the case was reversed for refusal of the court to submit to the jury the question as to whether the boy was an accomplice.

We quote from the opinion as follows:

'We have been given much trouble in determining whether or not this makes such a case as to call upon the trial court to submit the law of accomplice testimony. The holdings of our own court on the proposition of fact here involved are meager and somewhat confusing. The holdings of other courts of last resort do not seem to us to...