State v. Altwatter

CourtUnited States State Supreme Court of Idaho
Writing for the CourtPER CURIAM
Citation157 P. 256,29 Idaho 107
Decision Date09 May 1916
PartiesSTATE, Respondent, v. CHARLES ALTWATTER, Appellant

157 P. 256

29 Idaho 107

STATE, Respondent,
v.

CHARLES ALTWATTER, Appellant

Supreme Court of Idaho

May 9, 1916


CRIMINAL LAW - INFAMOUS CRIME AGAINST NATURE - SODOMY - INFORMATION - INCORRECT APPELLATION OF CRIME - ACCOMPLICE - CORROBORATION-INSTRUCTIONS.

1. Held, that the information states facts sufficient to constitute a public offense.

2. Though an information give an erroneous appellation, or fail to give an appellation, to the offense, yet if the acts constituting the offense as defined by the statute are sufficiently stated, the requirements of the Penal Code in that respect are answered.

3. Held, that the words "infamous crime against nature" as used in sec. 6810, Rev. Codes, are not limited to the common-law crime of sodomy, but include not only the crime of sodomy, but also all unnatural carnal copulations, whether with man or beast, committed per os or per anum.

4. Mere presence at, acquiescence in, or silent consent to, the commission of an offense is not, in the absence of a duty to act, legally sufficient, however reprehensible it may be, to constitute one an accomplice. Held, that there is no evidence in the record to support the theory that witness Warner was an accomplice to the crime committed by defendant, within the statute requiring corroboration of the testimony of accomplices, he not having advised, aided, abetted, encouraged or assisted in its commission.

5. Held, that the court did not err in giving or refusing to give certain instructions to the jury.

[As to who is an accomplice, see note in 138 Am.St. 273]

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. William W. Woods, Judge.

Defendant was convicted of the infamous crime against nature. Appealed; judgment affirmed.

Affirmed.

J. L. Seawell, for Appellant.

"A penetration of the mouth is not sodomy." (2 Bishop's Crim. Law, pp. 1193, 1194; Russell on Crimes, p. 693; Wharton's Criminal Law, pp. 575--579; McClain's Crim. Law, p. 1153; Prindle v. State, 31 Tex. Cr. 551, 37 Am. St. 833, 21 S.W. 360; Mitchell v. State, 49 Tex. Cr. 535, 95 S.W. 500; People v. Boyle, 116 Cal. 658, 48 P. 800; Kinnan v. State, 86 Neb. 234, 125 N.W. 594, 21 Ann. Cas. 335, 27 L. R. A., N. S., 478; Bailey v. State, 57 Neb. 706, 73 Am. St. 540, 78 N.W. 284; Harvey v. State, 55 Tex. Cr. 199, 115 S.W. 1193; Lewis v. State, 36 Tex. Cr. 37, 61 Am. St. 831, 35 S.W. 372; Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943; Davis v. Brown, 27 Ohio St. 326; State v. Johnson, 44 Utah 18, 137 P. 632.)

Whether one commits the crime or simply aids and abets it, he is guilty as principal. (People v. Mills, 41 Misc. 195, 83 N.Y.S. 947; Drury v. Territory, 9 Okla. 398, 60 P. 101; Reeves v. Territory, 10 Okla. 194, 61 P. 828.) "All who participate in a criminal enterprise are equally guilty of the crime committed by one of their number, in which the others, being present, either participate or are ready to assist." (People v. Gooch, 105 Mo. 392, 16 S.W. 892; State v. Nelson, 98 Mo. 414, 11 S.W. 997; People v. Cotta, 49 Cal. 166, 643; State v. Murray, 126 Mo. 526, 29 S.W. 590; Sankey v. State, 128 Ala. 51, 29 So. 578; People v. Moran, 144 Cal. 48, 77 P. 777.)

J. H. Peterson, D. A. Dunning and Herbert Wing, for Respondent.

"Modern lexicographers unite in giving the word 'sodomy' a broad and comprehensive definition, as is shown by the definition in the Century Dictionary, which is given as 'unnatural sexual relations as between persons of the same sex or with beasts.'" (Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L. R. A., N. S., 473; State v. Start, 65 Ore. 178, 132 P. 512, 46 L. R. A., N. S., 266.)

"The clause 'crime against nature' as used in our statute was so used intending to include therein every unnatural carnal copulation." (State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580; Herring v. State, 119 Ga. 709, 46 S.E. 876.)

Misnomer of a crime in the information works no prejudice to the defendant if the offense is correctly described in the statement of facts. (State v. Anderson, 3 Nev. 254; State v. Johnson, 9 Nev. 175; People v. Phipps, 39 Cal. 326; State v. Ansaleme, 15 Iowa 44; United States v. Elliot, 3 Mason, 156, F. Cas. No. 15, 044; State v. Gillett, 92 Iowa 527, 61 N.W. 169; Brady v. Territory, 7 Ariz. 12, 60 P. 698.)

"The general test to determine whether a witness is or is not an 'accomplice' is, could he himself have been indicted for the offense, either as principal or accessory. If he could not, then he is not an accomplice." (State v. Ean, 90 Iowa 534, 58 N.W. 898; Levering v. Commonwealth, 132 Ky. 666, 136 Am. St. 192, 117 S.W. 253, 19 Ann. Cas. 140; State v. Duff, 144 Iowa 142, 138 Am. St. 269, 122 N.W. 829, 24 L. R. A., N. S., 625.)

OPINION

[29 Idaho 109] PER CURIAM.

The appellant was charged by information of the prosecuting...

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28 practice notes
  • State v. Grimmett
    • United States
    • United States State Supreme Court of Idaho
    • July 1, 1920
    ...the fact is not an accomplice. (State v. Roberts, 15 Ore. 187, 13 P. 896; State v. Grant, 26 Idaho 189, 140 P. 959; State v. Altwatter, 29 Idaho 107, 157 P. 256; State v. Edlund, 81 Ore. 614, 160 P. 534; Levering v. Commonwealth, 132 Ky. 666, 136 Am. St. 192, 19 Ann. Cas. 140, 117 S.W. 253;......
  • People v. Lino, Docket Nos. 92352
    • United States
    • Supreme Court of Michigan
    • December 1, 1993
    ...and gross indecency between male and female persons, see M.C.L. § 750.338b; M.S.A. § 28.570(2). 7 See, e.g., State v. Altwatter, 29 Idaho 107, 157 P. 256 (1916); Herring v. State, 119 Ga. 709, 46 S.E. 876 (1904); State v. Dietz, 135 Mont. 496, 343 P.2d 539 (1959); State v. Fenner, 166 N.C. ......
  • Menges v. Wasden, Case No. 1:20-cv-00452-BLW
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • September 8, 2021
    ...See [redacted].5 The Idaho Supreme Court has interpreted the Crime Against Nature statute to bar oral or anal sex. State v. Altwatter , 29 Idaho 107, 157 P. 256 (1916) ; State v. Gomez-Alas , 167 Idaho 857, 862, 477 P.3d 911 (2020) ("All unnatural copulation includes acts ‘committed per os ......
  • State v. Gonzales, No. 10054
    • United States
    • United States State Supreme Court of Idaho
    • March 25, 1968
    ...of several concerned in a felony; an associate in a crime; one who co-operates, aids, or assists in committing it.' State v. Altwatter, 29 Idaho 107, at 111, 157 P. 256, at 257 '* * * a mere mental state of uncommunicated consent or acquiescence on the part of a bystander, where a crime is ......
  • Request a trial to view additional results
28 cases
  • State v. Grimmett
    • United States
    • United States State Supreme Court of Idaho
    • July 1, 1920
    ...the fact is not an accomplice. (State v. Roberts, 15 Ore. 187, 13 P. 896; State v. Grant, 26 Idaho 189, 140 P. 959; State v. Altwatter, 29 Idaho 107, 157 P. 256; State v. Edlund, 81 Ore. 614, 160 P. 534; Levering v. Commonwealth, 132 Ky. 666, 136 Am. St. 192, 19 Ann. Cas. 140, 117 S.W. 253;......
  • People v. Lino, Docket Nos. 92352
    • United States
    • Supreme Court of Michigan
    • December 1, 1993
    ...and gross indecency between male and female persons, see M.C.L. § 750.338b; M.S.A. § 28.570(2). 7 See, e.g., State v. Altwatter, 29 Idaho 107, 157 P. 256 (1916); Herring v. State, 119 Ga. 709, 46 S.E. 876 (1904); State v. Dietz, 135 Mont. 496, 343 P.2d 539 (1959); State v. Fenner, 166 N.C. ......
  • Menges v. Wasden, Case No. 1:20-cv-00452-BLW
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • September 8, 2021
    ...See [redacted].5 The Idaho Supreme Court has interpreted the Crime Against Nature statute to bar oral or anal sex. State v. Altwatter , 29 Idaho 107, 157 P. 256 (1916) ; State v. Gomez-Alas , 167 Idaho 857, 862, 477 P.3d 911 (2020) ("All unnatural copulation includes acts ‘committed per os ......
  • State v. Gonzales, No. 10054
    • United States
    • United States State Supreme Court of Idaho
    • March 25, 1968
    ...of several concerned in a felony; an associate in a crime; one who co-operates, aids, or assists in committing it.' State v. Altwatter, 29 Idaho 107, at 111, 157 P. 256, at 257 '* * * a mere mental state of uncommunicated consent or acquiescence on the part of a bystander, where a crime is ......
  • Request a trial to view additional results

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